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March 13, 1996


Appeal from the Circuit Court of Cook County. Honorable Margaret J. Frossard, Judge Presiding.

Presiding Justice Rizzi delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Rizzi

PRESIDING JUSTICE RIZZI delivered the opinion of the court:

A jury found defendant, James Nathaniel Davis (Davis), guilty of first-degree murder and residential burglary. On appeal, he contends that he was not proven guilty beyond a reasonable doubt. We agree. We therefore reverse the judgment of conviction.

The homicide victim was Diane Davis (Diane). Davis married Diane on November 1, 1968. He was 41 and she was 25 years old. It was his second marriage; he had three children from his first marriage. Before, and during, his marriage to Diane, Davis was employed as president of a family owned insurance company. In 1969, Davis and Diane bought a home (the Kenilworth home) located at 150 Oxford Road in Kenilworth, Illinois. Two children were born from their marriage; Marie was born in 1971, and Nathaniel was born in 1973.

In 1984, Diane filed a petition for dissolution of the marriage in the circuit court of Cook County. Diane and Davis continued to live in the Kenilworth home for about two years, but they slept in separate bedrooms. In July 1986, Davis moved from the Kenilworth home to a townhouse (Northbrook townhouse) at 738 York Court in Northbrook, Illinois. While the divorce case was pending, in September 1986, the parties signed a joint parenting agreement. Diane had primary physical custody of the children but Davis had physical custody in the summer months.

Diane dated several men. In March 1988, she began to date Frank Fitch. In 1989 and 1990, Fitch lived with Diane, Nathaniel and Marie at the Kenilworth home. Diane's co-habital relationship with Fitch continued until May 1990 when Diane ended the relationship. In June 1990, Diane had an alarm system installed in the Kenilworth home. In October 1990, Diane's relationship with Fitch was rekindled and they dated until December 1990 when she told Fitch that their relationship was over because she did not want to get AIDS. Diane was subpoenaed to give her deposition in Fitch's divorce case. Fitch's wife at the time pressed battery charges against him, and he pled guilty. Fitch was also known to own guns.

During the course of his relationship with Diane, Fitch had free rein of the Kenilworth home. He had a key to the house and knew the alarm code. There were also others who had a key to the house and knew the alarm code.

The alarm system at the Kenilworth home included an alarm for entry to the house, as well as a motion detector within the house. The motion detector was located on the stairway leading from the basement to the first floor. It was set to trigger the alarm if someone walked on the first or second steps from the top of the basement stairs.

The alarm system included an on/off alarm pad inside the house, next to the side door, which is the main entrance. A four digit code was used to arm or disarm the system. In order to arm the system, one had to press the code on the alarm pad. The motion detector would not be armed, however, unless a button on the alarm pad was pressed prior to the code being pressed.

If the alarm system was breached other than by opening the main entrance door, the system would instantly send a signal through the phone lines to a computer screen at a central reporting station, and someone there would dispatch the police. If the main entrance door was opened when the alarm system was armed, a loud warning sound would be generated in the house to alert anyone inside the house. The sound would continue until the person entering the house pressed the code on the alarm pad. If the correct code was not pressed within 30 seconds, the system would instantly send a signal through the phone lines to the reporting station.

Davis was never told the alarm code. Also, Diane told Nathaniel that she did not want him to tell or let Davis know the alarm code. On the infrequent occasions that Davis entered the Kenilworth home with Nathaniel, Davis would wait outside until Nathaniel pressed in the alarm code, and only then would Davis enter the house. Similarly, when Davis and Nathaniel left the house, Nathaniel would wait until his father left the house, and then he would press in the code to re-arm the system.

On one occasion, however, on July 4, 1991, Davis was in the house somewhere behind Nathaniel while Nathaniel pressed in the alarm code to re-arm the alarm system. At trial, the prosecutor did not pursue any questioning to determine whether Davis saw the code numbers. There is no testimony or evidence that Davis saw the code numbers that were pressed on that occasion or at any other time. In addition to there being no evidence that Davis actually saw or knew the alarm code, Davis did not have a key to the Kenilworth home. Also, after he moved out in 1986, Davis never went up to the second floor of the Kenilworth home.

Diane was killed by seven gunshot wounds while she was in her bedroom on the second floor of the Kenilworth home during or about the early morning of Thursday, July 25, 1991. At the time, Marie was living away at school in Boston, and Nathaniel was living with Davis at the Northbrook townhouse.

On Wednesday, July 24, 1991, Nathaniel and Diane had dinner together at the Kenilworth home. They then sat from 7 p.m. to 10 p.m. in a screened porch that was part of the house. Diane received a phone call. After the phone call, Diane told Nathaniel to pick up their dog from the kennel on Saturday because she was going to Wisconsin the next day to visit her aunt for a few days. Diane had purchased the dog after Davis moved out of the Kenilworth home in 1986.

After Nathaniel agreed to pick up the dog from the kennel on Saturday, he left the Kenilworth home and drove directly to the Northbrook townhouse and parked his car nearby. He arrived at the Northbrook townhouse at 10:40 p.m. Davis was home, and his car was parked inside the garage. The garage was directly below the bedroom in which Davis and Nathaniel slept.

Davis was in the upstairs bedroom, except when he went to the washroom, while Nathaniel watched television on the first floor level until 11 p.m. Nathaniel then went upstairs to go to bed. He removed his wallet and key ring from his pockets, placed his clothes on the floor, and went to bed. Davis was already in bed. Nathaniel and Davis slept in the same bedroom in separate twin beds which were pushed together to resemble one king-size bed.

During the night of Wednesday and early morning of Thursday, Nathaniel was never awakened by any sound or movement from Davis. In addition, during that time Nathaniel never heard the electrically operated garage door open; the garage door was located directly below the bedroom and when it would go up or down it would make a noise and "vibrate" the bedroom. Nor did Nathaniel hear the sound of a car engine starting during the relevant night and early morning hours.

On Thursday morning, Nathaniel and Davis woke at 9 a.m. and had breakfast together. They spent an uneventful day and nothing unusual was noticed. On Friday, Nathaniel and Davis spent time and had dinner together. Nothing unusual was noticed. On Saturday morning, Nathaniel drove to the kennel about 8 a.m. to pick up Diane's dog. After being told that the dog was not there, Nathaniel drove to the Kenilworth home. After arriving, he tried using the automatic garage door ...

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