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01/18/96 PEOPLE STATE ILLINOIS v. EDWARD ALPHONS

January 18, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
EDWARD ALPHONS MOORE, JR., APPELLANT.



The Honorable Justice Miller delivered the opinion of the court:

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

Following a jury trial in the circuit court of Grundy County, the defendant, Edward Alphons Moore, Jr., was convicted of seven counts of first degree murder, and one count each of home invasion, residential burglary, aggravated criminal sexual assault, robbery and arson. At a separate sentencing hearing, the jury found the defendant eligible for the death penalty (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(6)(c)), and found no mitigating circumstances sufficient to preclude the imposition of the death penalty (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(g)). The trial court sentenced the defendant to death. No sentences were imposed on the other felony counts. The defendant's death sentence has been stayed pending direct review by this court. (Ill. Const. 1970, art. VI, ยง 4(b); 145 Ill. 2d Rules 603, 609(a).) For the reasons that follow, we affirm the judgment of the circuit court.

FACTS

The charges against the defendant stem from the sexual assault and murder of Judy Zeman on July 7, 1991. At trial, Dennis Hackett testified that he reported to the Grundy County sheriff's department an abandoned car in his front yard on July 7, 1991. Deputy Lonnie Harvey testified that he responded to the call at 5:22 a.m. and discovered a Cadillac car against a tree with its keys in the ignition and its engine running. Harvey determined that the car was registered to the Zemans, who lived nearby, and drove to their home. As Harvey neared the Zeman home, he noticed a large woodpile burning and a burn victim lying just east of the attached garage on the horseshoe driveway. The victim was unclothed, had burns over most of her body, had a "circular halo clump of duct tape" stuck in her hair, was lying on her back with her hands tied underneath her by duct tape, and was moaning for help. The victim identified herself as Judy Zeman and told Harvey that a man "raped [her] and lit [her] on fire." She pleaded with Harvey to untie her hands and told him that she was cold. After Harvey cut the duct tape binding her hands and covered her with a blanket, he "asked [the victim] if she knew who had done this to her, and she said no she didn't." Harvey testified that he never asked for a facial description and the victim did not volunteer one.

While awaiting the ambulance, the victim told Harvey that she had been asleep in her bedroom with her dog, who began barking at about 2:30 a.m. After awhile, she opened the bedroom door to let the dog out, and walked to the bathroom when a man jumped out with a knife. The victim related that it was extremely dark and that all she could tell about the man was that he wore black tennis shoes, dark clothes, and gloves. She said that the man raped her in her bedroom, stole money and jewelry, and took her outside to the woodpile, which was located to the southeast of the horseshoe driveway. The man told her that he had to burn some evidence. He then poured gasoline on her and lit her on fire. She later crawled from the woodpile to the driveway. She added that the man kept calling her a bitch. The victim told Harvey that her husband was in Alaska on a fishing trip. When Harvey told the victim that her car was found, she responded that she thought the man was going to sell the car. A paramedic testified that the victim told her that she had been lying on the driveway since 3 or 3:30 a.m.

The victim was admitted to Morris Hospital's emergency room at 6:16 a.m. on July 7. The physician testified that he believed the victim sustained second- and third-degree burns over 90% of her body and was conscious but in shock. At 6:31 a.m., the victim was intubated, rendering her unable to speak. In fact, the victim was never able to speak again.

In the brief 15 minutes between her hospital admission and intubation, the victim spoke with various medical personnel on duty. Debbie Esler, a cardiopulmonary technician, testified that she asked the victim if she had ever seen the man who did this to her before and that the victim said "no." Patty Orton-Williamson, a nurse, testified that she heard the victim tell Esler either that she did not see the man or that she did not know the man.

Medical personnel also testified to other information. Esler testified that the victim told her that the man tried to tie her to the back of her car and that he beat her. Terry Donahue, an anesthetist, testified that the victim told him that the man started her car and told her to kneel behind the exhaust pipe, but she refused. Donahue and Esler also testified that a strip across the victim's eyes did not appear to be as burned as the rest of her face. Donahue testified that this strip was consistent with the size of the duct tape stuck in the victim's hair. Esler testified that she believed the duct tape stuck in the victim's hair, which gave the appearance of a halo, had once covered the victim's eyes and had later been pushed up.

The victim was transferred from Morris Hospital to another hospital that morning. She remained intubated and thus unable to speak. The victim was pronounced dead at 8:43 that evening. She died from thermal burns. The medical examiner who performed the autopsy testified that the victim also had a bruise on her vaginal wall consistent with sexual assault, head injuries caused by blunt trauma, and a tongue laceration consistent with being struck on the jaw. The medical examiner further testified that some of the victim's eyelashes, some of her right eyebrow, and a little of her left eyebrow were still intact.

The Grundy County sheriff's department investigated the murder. The sheriff testified that, because the Zeman house was newly built and secluded, he told officers to interview those who had worked on the house, including the defendant. The sheriff testified that the officers could not find the defendant, who, they later learned, had flown to Florida on July 7.

A deputy testified that on July 7 he found a business card in the driveway of the Bruce Barr residence, a new home being built next door to the home where the victim's car had been abandoned. The business card was pink and had printed on it "E & M Painting" and "Ed Moore." A detective testified that Barr told him that he did not see the defendant's business card on the driveway when he left the construction site at 5 p.m. on July 6. Barr testified that the defendant had visited the site several times within weeks of the murder to solicit work, but that he did not give Barr a business card. Pursuant to a search warrant issued on July 15, 1991, a detective seized three of the same business cards from the floorboard of defendant's car and a box of the same from defendant's apartment. A print shop owner identified the box of business cards, and testified that it left his shop on June 26, 1991.

The sheriff's department interviewed Carl Zeman, the victim's husband. Carl testified at trial that he and his wife moved into the unfinished home in December 1990. Carl stated that the defendant painted the interior of their home from mid-April to June 1991. During this time, the defendant spent time alone in the house and befriended the family dog. Carl testified that he had paid the defendant in cash from a safe located in a master bedroom closet on occasion. He said that he and his wife were the only ones who knew the safe's combination.

Carl left for an Alaska fishing trip on July 2, 1991, and was scheduled to return on July 8, 1991. Carl testified that he had planned this trip months in advance and had mentioned it in the defendant's presence. When Carl left for the trip, the safe contained between $7,000 and $10,000, some of his wife's jewelry, and other legal papers. When he returned, the safe was empty. Also missing were his wife's car and a gasoline can from the garage. According to Carl, defendant never had permission to use his wife's car. He further testified that the defendant had access to a house key that opened every door to the house except the patio door. A crime scene technician testified that the patio door was the point of forcible entry to the home.

During their investigation, the sheriff's department subpoenaed telephone records. An Illinois Bell security manager testified at trial that, at 9:07 p.m. on July 6, a 10-minute telephone call was placed from the defendant's home phone number to the Zemans' home phone number.

Several witnesses testified regarding the defendant's financial status before the time of the murder. An operations officer of a bank testified that the defendant's checking account was closed on April 19, 1991, because of overdrafts. An officer of another bank testified that the defendant's checking account was closed on May 8, 1991, because of overdrafts.

An Illinois state police sergeant testified that he searched the home of the defendant's girlfriend pursuant to a warrant on July 20, 1991, and found two money orders dated July 9, 1991. Each money order was made payable to the girlfriend in the amount of $700. The remitter listed was Ken Moore.

Numerous witnesses testified regarding the defendant's whereabouts on July 6 and 7, 1991. A restaurant owner in Westmont testified that the defendant arrived at his restaurant/bar around 3 p.m. on July 6 and left around dusk. The defendant's apartment building manager testified that she talked with the defendant in her apartment briefly on July 6 between 8 and 9 p.m. As stated, at 9:07 p.m. on July 6, a 10-minute phone call was placed from the defendant's phone number to Zemans' phone number. Sometime between 10 p.m. and midnight on July 6, defendant left a message on a customer's answering machine, in which he apologized for missing their July 6 appointment and said he would stop by on July 7. The customer never heard from the defendant again. Two witnesses testified that the defendant was at a bar on July 6, and one of the two witnesses testified that the defendant stayed until at least 12:50 a.m. on July 7. A friend of the defendant's next-door neighbor testified that while he was at his friend's apartment briefly at around 1 a.m. on July 7, the defendant came over and asked for a beer.

No testimony established where the defendant was while the victim was being attacked, which, according to testimony, was sometime between 2:30 and 3:30 a.m. on July 7. At 6:30 a.m. on July 7, flight reservations were made by phone for Ken and Cathy Peterson. The flight was to leave Chicago and arrive in Florida on July 7. A sales agent identified the defendant at trial as the person who came to her ticket counter to purchase one of these tickets. Because he was paying in cash, had no baggage, and was purchasing a one-way ticket, the agent requested identification. Initially the defendant said he had none, but he later confessed that his name was Ed Moore, not Ken Peterson, and displayed his Illinois driver's license. The agent reissued a ticket for the Florida flight in the name of Ed Moore.

At trial, the victim's daughter identified her mother's pearl ring, topaz ring and diamond wedding band from photographs. These photographs were also shown to two Florida witnesses. One witness from Florida testified that the defendant tried to sell her a diamond ring and a pearl ring in a Florida bar on July 9, 1991, and she identified the pearl ring as the victim's from a photograph. A co-worker corroborated the witness' testimony, but a Florida officer testified that the co-worker had stated earlier that he did not see the defendant with jewelry. The co-worker added that the defendant's appearance had changed between July 9 and a week or two later. A second witness testified that the defendant tried to sell her a diamond ring and a topaz ring in a Florida bar on July 20, 1991, and she identified the topaz ring as the victim's from a photograph. The second witness admitted that she saw a poster offering $40,000 for information leading to the defendant's conviction, but testified that she did not expect to receive the reward. She added that the defendant kept calling her a bitch.

Several witnesses testified that the defendant acted suspiciously while in Florida. In July 1991, a Pinellas County detective placed a motel guest registered as Ken Pontello under surveillance. After the investigation was closed, the detective learned that Ken Pontello was the defendant. During surveillance, defendant was interviewed twice. A Florida officer testified that on July 23, he approached the defendant at a pay phone. The officer searched a bag that was sitting at the base of the phone, and found clothing and $965 in cash. Defendant identified himself as Ken Pontello and displayed an Arizona driver's license, but was unable to correctly state his social security number. The officer also inquired about a bandage on the defendant's right forearm. While the defendant gave medical excuses for it, the officer determined that the bandage covered a tattoo like one on the defendant's right forearm. In the second interview on July 24, defendant identified himself to a detective as Keith Moore, and could not explain why he was registered as Ken Pontello. Defendant stated that he was from Phoenix, but gave a fictitious address. Defendant possessed some clothing and a check in the amount of $1,000 or $2,000.

A cab driver in Florida knew the defendant as Tom. The cab driver testified that on July 23 he booked a room for the defendant under his name because the defendant said he had no identification. He added that the defendant's appearance had changed since several weeks before July 23. The cab driver also admitted that he had heard about a reward.

A friend of the defendant who lives in Florida testified at trial that the defendant called the friend, and told the friend that he needed $5,000 in money orders "laundered" through the friend's mother and some cash to tide him over. In cooperation with a Federal agent, the friend sent the defendant $100 payable to Ken Saif through Western Union on July 27, and learned later that day that the money had been picked up at a bus terminal in New York City. The friend added that the defendant calls anyone a bitch when agitated. A Kankakee police officer testified that the friend's mother received three money orders in a Federal Express envelope.

A New York City detective testified that on July 27, a Grundy County deputy called and told him that a murder suspect wanted in Illinois had just picked up $100 from a Western Union located in his precinct. The defendant was arrested later that day by New York City officers. When arrested, defendant had in his hand a cut up identification card in the name of Ken Saif. Defendant was taken to a New York City police station and placed in a holding cell.

Testimony was introduced at trial regarding inculpatory statements made by the defendant while in the holding cell with Irwin Johnson and Troy Snell. Johnson testified that defendant told him and Snell that he was being held in connection with an Illinois murder. Defendant explained that he was a painter for a wealthy woman with whom he was having an affair. Defendant stated that he and the woman had sex and then argued about her husband coming home. Defendant said that he used duct tape to cover the woman's eyes and to tie her wrists behind her. He stated that he took some of the woman's money and jewelry, and then set her on fire. Johnson admitted that he heard Snell talk about a $40,000 reward for information leading to defendant's conviction when he and Snell were being transported to testify in this case. Snell testified in rebuttal that Johnson was present when Snell heard the defendant say that the police were trying to charge him with murder, rape and robbery in Illinois, but that they had nothing on him. A New York City detective testified that while he was doing paperwork, he overheard the defendant say that "they couldn't have gotten the prints off the tape it should have burned" and "something like she couldn't have told them who it was." The detective also testified that defendant's hair looked like it had been dyed.

Physical evidence was admitted at trial. A forensic scientist testified that two fingerprints on the adhesive side of the duct tape removed from the victim's hair and one fingerprint on a key tag found in the victim's abandoned car were identified as defendant's. Another forensic scientist testified that seminal material taken from the victim's vaginal swab was consistent with defendant's blood type. Having compared hairs found on the floor mat of defendant's car to known standards, a forensic scientist testified that two hairs were consistent with the victim's head hairs, and that one hair was consistent with the defendant's head hairs and showed signs of extreme heat damage. He also compared hairs found on the victim's bedding and underclothing, and testified that those hairs were not consistent with defendant's. The State's DNA expert testified that defendant's blood and the seminal fluid taken from the victim's vaginal swab "matched," and that the probability that someone other than defendant was the donor was 1 in 466. Defendant's DNA expert testified that the FBI procedures were flawed and that the probability calculated was not significant.

Defendant did not testify at trial. The jury found the defendant guilty of seven counts of first degree murder, and one count each of home invasion, residential burglary, aggravated criminal sexual assault, robbery and arson. The State asked for the death penalty. In the first stage of the sentencing hearing, the jury found the defendant eligible for the death penalty because he was over 18 years of age at the time of the murder and was convicted of killing the victim in the course of five of the felonies listed in section 9-1(b)(6)(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(6)(c)).

During the second stage of the sentencing hearing, the State presented evidence in aggravation, including the following. A probation officer testified that the defendant had an extensive criminal history, including imprisonment for committing forgery, theft, residential burglary, deceptive practices, and violations of probation and parole. Defendant also received a ticket at a correctional center in 1990 for threatening to "shank" an inmate. Defendant's father, Edward Massaro, testified that he changed his name from Moore to Massaro because the defendant had stolen and cashed his government checks. Massaro added that he no longer talked to his son "because of all the things that he has done to [Massaro]." Two Westmont police officers testified to an incident in 1981 in which the defendant abducted his own baby and harassed the baby's mother and threatened to kill the baby. A Hinsdale detective testified to an incident in 1976 in which the defendant allegedly forced a 15-year-old girl into a car, threatened to rape her, and struck her before she was able to escape. A state police officer testified to a similar incident in 1989 in which the defendant allegedly raped a 15-year-old girl. A Hinsdale detective testified that he investigated an incident in 1983 in which the defendant stole items from an employer's home and then fled to Florida. He was later extradited and convicted of residential burglary. A Wheaton officer testified to a similar incident in 1989 in which the defendant stole money and jewelry from an employer's home. A friend of the defendant testified that the defendant told her in May 1991 that he was painting for wealthy people who owned a Cadillac and that he "ought to rob the bitch." A deputy testified that the defendant attacked two correctional officers and threatened to kill another, and that the defendant told an escort deputy that he ought to grab the escort deputy's gun and run.

In mitigation, the defense adduced testimony regarding the defendant's history of child abuse. The defendant's uncle testified that he witnessed many beatings administered to the defendant by his father, and recounted incidents including a bloody beating in a crib when the defendant was 2 1/2 months old. Four of the defendant's siblings testified. Katherine and Cynthia testified that their father beat the defendant, and recalled that their father had stabbed the defendant when be was 23 years old. Cynthia testified that she stopped seeing the defendant, however, because he stole from her. Kevin described their father's beatings of the defendant as too numerous to count. Kenneth numbered the beatings in the "hundreds" or "thousands." Kenneth testified, however, that he no longer allowed the defendant in his home because he caught a prostitute, whom the defendant brought to Kenneth's home, putting a needle in her arm while Kenneth's children were home. Kenneth further testified that several of the defendant's siblings did not want the defendant around their children for fear that he would molest them. We note that the defendant's father denied the abuse and that the defendant's father testified that the defendant was placed in special education classes from second through eighth grade, did not complete high school, and had been diagnosed as suffering from a mental disability.

At the conclusion of the second stage of the sentencing hearing, the jury found no mitigating circumstances sufficient to preclude the imposition of the death penalty. The defendant was sentenced to death for the murder of Judy Zeman. His post-trial and supplemental post-trial motions were later denied.

ARGUMENT(S)

I. Sufficiency of Evidence

The defendant first contends that he was not proved guilty beyond a reasonable doubt. On review, this court will not reverse a conviction unless the evidence is so improbable that a reasonable doubt of the defendant's guilt is justified. ( People v. Eyler (1989), 133 Ill. 2d 173, 191, 139 Ill. Dec. 756, 549 N.E.2d 268.) "'The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' (Emphasis in original.)" ( Eyler, 133 Ill. 2d at 191, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) The standard is the same whether the evidence is direct or circumstantial. People v. Sutherland (1992), 155 Ill. 2d 1, 17, 182 Ill. Dec. 577, 610 N.E.2d 1.

In this case, the jurors heard testimony against the defendant showing evidence of opportunity, motive, flight, and inculpatory statements. Also admitted was testimony that the defendant was in possession of the victim's jewelry in Florida, that the defendant had large amounts of money, and that he had changed his appearance. Forensic evidence was also presented. Defendant, however, argues numerous infirmities with the evidence against him. While we have considered all of his arguments, we only mention the following.

Defendant first asserts that testimony established that the victim was unable to identify her attacker. He argues that, because she knew him, she would have identified him if he were the attacker. Testimony, however, also showed that it was dark at the time of the attack and that the victim's eyes were covered by duct tape. Furthermore, a detective overheard the defendant say "something like she couldn't have told them who it was."

Defendant next contends that his fingerprints could have been expected to be found on the duct tape and the key tag because he was a painter and may have had reason to move the victim's car. The defendant's fingerprints, however, were found on the adhesive side of the duct tape, which suggests that they were left when the duct tape was used. In addition, the victim's husband testified that the defendant never had permission to drive his wife's car.

Defendant also tries to discredit the credibility of the two ring witnesses. Defendant points out that one witness identified the diamond ring only after seeing it for the first time in the prosecutor's office. The identification of one of two rings at trial, however, was highly incriminating. Defendant further asserts that the second witness was aware of a $40,000 reward for information leading to his conviction. Mere knowledge of a reward, however, does not render testimony incredible.

Defendant next tries to discredit cellmate Johnson's testimony. Defendant argues that Johnson's testimony is not credible because Johnson is a felon. Further, defendant argues that Snell, who is also a felon, testified that he only heard the defendant say that police were trying to get him for murder in Illinois but that the police had nothing on him. We will not reweigh the credibility of these witnesses.

After reviewing the evidence in a light most favorable to the prosecution, we conclude that there was more than sufficient evidence to convict the defendant of murder beyond a reasonable doubt.

II. The Admission of DNA Evidence

Defendant next argues that the trial court erred in admitting deoxyribonucleic acid (DNA) evidence. He first contends that the trial court erred in denying a Frye hearing. Second, defendant argues that the trial court erred in admitting the DNA evidence when its prejudice outweighed its probative value.

Before trial, defense counsel moved to exclude the results of the DNA testing in this case. ( Frye v. United States (D.C. Cir. 1923), 54 App. D.C. 46, 293 F. 1013.) In Frye, the court held that the use of evidence that has not gained general acceptance within the relevant scientific community is improper. ( Frye, 293 F. at 1014; but see Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.S. 579, , 125 L. Ed. 2d 469, 480, 113 S. Ct. 2786, 2794 (Frye test no longer applicable in Federal trials).) This court recognized the Frye standard in People v. Baynes (1981), 88 Ill. 2d 225, 241, 58 Ill. Dec. 819, 430 N.E.2d 1070 (polygraph evidence). The defendant contended that a Frye hearing, in which the trial judge would determine outside of the jury's presence whether DNA evidence is generally accepted within the scientific community, was necessary here. The trial court refused to grant a Frye hearing. See People v. Lipscomb (1991), 215 Ill. App. 3d 413, 429-32, 158 Ill. Dec. 952, 574 N.E.2d 1345; People v. Miles (1991), 217 Ill. App. 3d 393, 402-04, 160 Ill. Dec. 347, 577 N.E.2d 477.

During trial, the defendant renewed his objection to the admission of the DNA evidence. The defendant raised the issue of whether the DNA evidence was probative when the probability of a random match was 1 in 466, relying on People v. Harbold (1984), 124 Ill. App. 3d 363, 383, 79 Ill. Dec. 830, 464 N.E.2d 734 (admission of probability statistic of 1 in 500 as relating to genetic marker testing was plain error). The trial court held an evidentiary hearing outside of the jury's presence. The State called as an expert witness Robert Coffin, a special agent with the FBI, who testified to the propriety of the FBI procedures. The defendant did not call an expert witness to challenge Coffin's testimony nor did he make an offer of proof. After considering Coffin's testimony, arguments of counsel, and relevant case law, the trial judge ruled that any questions as to the ...


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