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11/22/95 PEOPLE STATE ILLINOIS v. DARRYL SIMMS

November 22, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DARRYL SIMMS, APPELLANT.



Appeal from the Circuit Court of DuPage County, the Hon. Ronald Mehling, Judge, presiding.

The Honorable Justice Heiple delivered the opinion of the court: Justice Harrison took no part in the consideration.

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

After a bench trial in the circuit court of Du PageCounty, defendant, Darryl Simms, was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)), aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a)), criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-13(a)), armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2), home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12-11(a)), and residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3(a)). This court affirmed these convictions in People v. Simms (1988), 121 Ill. 2d 259, 117 Ill. Dec. 147, 520 N.E.2d 308 (Simms I), but reversed and remanded for a new sentencing hearing, where defendant was sentenced to death. In People v. Simms (1991), 143 Ill. 2d 154, 157 Ill. Dec. 483, 572 N.E.2d 947 (Simms II), this court again vacated defendant's death sentence and remanded to the circuit court. At his third capital sentencing hearing, defendant elected to be sentenced by a jury. The jury found defendant eligible for the death penalty and concluded there were no mitigating factors sufficient to preclude the imposition of the death penalty. Defendant was sentenced to death, but the sentence was stayed (107 Ill. 2d R. 609(a)) pending direct review by this court (Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d R. 603). We affirm defendant's sentence.

On appeal to this court, defendant argues that (1) a juror was improperly excused for cause; (2) the jury venire was not a fair cross-section of the community; (3) gang evidence was admitted in violation of his right of confrontation and his freedom of association; (4) his statement about a past crime was improperly admitted; (5) evidence of defendant's past crime violated his sixth amendment right to counsel, (6) his statement during processing was admitted in violation of Miranda ; (7) the prosecutor made improper statements during closing argument; (8) the trial court improperly admitted convictions of four counts of residential burglary; (9) he was entitled to a Gacho natural life instruction; (10) his pro se motion for new counsel was improperly denied; and (11) the Illinois death penalty statute is unconstitutional.

FACTS

The evidence presented during the eligibility phase was substantially similar to the evidence presented during the eligibility phase of defendant's second sentencing hearing. (See Simms II, 143 Ill. 2d at 162-66.) In the interest of brevity, those facts will be repeated only as necessary to address defendant's arguments.

At the second stage of the capital sentencing hearing, the State presented evidence of defendant's criminal record. He had twice been adjudicated delinquent and his juvenile criminal history included theft from school lockers after cutting the locks off; setting his school on fire; residential burglary; auto theft; and burglary of a church. His adult criminal activity included burglary of a laundromat; attempted auto theft; possession of a stolen motor vehicle; and unlawful possession of a weapon.

On behalf of the State, three women testified regarding previous contacts with defendant. Sharon Williams testified that, in 1980, she agreed to go on a date with defendant, who was then 19 years old. Defendant, along with two male friends, picked her up. She got into the back seat of the car with defendant, who subsequently forced her, at knifepoint, to have sexual intercourse.

Sandra Sender stated that defendant, who was a friend of her ex-husband, knocked on her door one morning. After she let him inside, he pulled a knife and strangled her. She passed out. When she regained consciousness, defendant was having sexual intercourse with her. She then distracted defendant long enough to flee the building and call the police. Defendant was convicted of aggravated battery.

Mary Matas testified that defendant attacked her as she was on her way home one day after work. Defendantgrabbed her from behind after she got in her car, cut her with a knife, and raped her. Several weeks later, as she returned from work and pulled into her garage, defendant attempted to attack her again but he was scared away by a family member.

The State also presented evidence regarding defendant's prison behavior. A former fellow jail inmate testified that defendant attempted to intimidate the other inmates using his gang affiliation. Other witnesses also recounted defendant's gang affiliation. An attorney testified that, while meeting with a client, she observed defendant slap his wife and have her perform oral sex in the prison visiting room. Defendant's wife denied that this occurred. Defendant's prison behavior also included beating another inmate, throwing hot liquid on a prison guard, and various other infractions.

In mitigation, defendant presented evidence of his rough childhood. He was abandoned by his natural father, beaten by an alcoholic stepfather, and not disciplined by his mother. He grew up in a low-income, high-crime neighborhood on Chicago's South Side and began using drugs and alcohol at a relatively young age. When defendant was about 16 years old, his mother moved and he lived with an older sister.

Several witnesses testified regarding an incident where defendant was bitten by a police dog as police responded to a burglary being committed by defendant. The dog bite resulted in lacerations to the defendant's penis and thighs and defendant prevailed in a civil suit against the city but the damages were set aside. Defendant's ex-wife, and the mother of his two children, stated that, after the dog-bite incident, he became very aggressive, short-tempered, subdued, and his drug use increased. She also testified that defendant stays in regular contact with his children. Defendant and his current wife married while he was in prison. According toher, defendant has changed for the better in the past few years and is very loving and supportive of her and her daughter.

Defendant also presented mitigation evidence that he had assisted in a program for juvenile delinquents. In that program, he spoke to groups of youth offenders about his involvement with gangs, drugs, and alcohol and encouraged the youths to stay out of trouble. According to the testimony of the program director and a juvenile who heard him speak, defendant's participation has had a positive influence on the juveniles. While in prison, defendant got his GED and showed interest in taking college courses.

Defendant also presented testimony by a psychiatrist that defendant suffers from an antisocial personality disorder, as well as from post-traumatic stress disorder stemming from the dog-bite incident. He also has suffered from drug and alcohol dependence. Defendant's final witness was a minister, who testified that defendant has changed for the better recently, purportedly showing motivation to become a changed and rehabilitated person.

ANALYSIS

I. Excusal of Juror Manjunath for Cause

On appeal, defendant initially alleges that the trial court abused its discretion and denied him a fair sentencing hearing when it excused juror Manjunath for cause. During voir dire, the following exchange occurred between the juror and the trial judge:

"Q. Do you have any feelings, strong feelings or not as to the issuance of a death penalty?

A. At this time, I have no strong. Except in the Dahmer case.

Q. And if you did reach a conclusion in your own mindalong with the other jurors, you could sign your name to a verdict one way or the other saying, no, he shouldn't receive the death penalty or, yes, he should?

A. Yes."

The prosecutor then questioned the juror, concluding with this exchange:

"Q. You will [impose a capital sentence] if the facts and the law require it. Is that right?

A. That's right."

Manjunath was accepted, sworn, and sent home for the weekend. When he returned the following Tuesday, he notified the court that he may have a problem serving as a juror. He was bothered that the case involved a possible death penalty and believed that the length of the trial would interfere with his work.

The State then had an opportunity to question him regarding his views on capital punishment:

"Q. Mr. Manjunath, *** you are still of mind that you could vote to impose a sentence of death; is that correct?

A. See, that was what bothered me, I am worried about the after effects of that. So I am ...


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