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March 26, 1996


Appeal from the Circuit Court of Cook County. No. 91 CR 11292. The Honorable Loretta Hall Morgan, Judge Presiding.

The Honorable Justice DiVITO delivered the opinion of the court: Hartman, P.j., and Scariano, J., concur.

The opinion of the court was delivered by: Divito

The Honorable Justice DiVITO delivered the opinion of the court:

Following a jury trial, defendant Thomas Shaw was found guilty of first degree murder and aggravated criminal sexual assault. He was sentenced to natural life imprisonment for the first degree murder with a concurrent 60-year term for the aggravated criminal sexual assault. In this appeal, he contends that (1) the State improperly introduced evidence and commented about his post-arrest silence in violation of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976); (2) the circuit court erred in admitting expert testimony concerning the source of a mark on his shoulder; (3) the corpus delicti of aggravated criminal sexual assault was not proved; (4) the admission of hearsay deprived him of a fair trial; (5) the circuit court erred in refusing to instruct the jury on second degree murder; (6) the State's closing arguments were improper; and (7) there was no justification for the imposition of a natural life sentence. For the reasons that follow, we affirm.

At trial, Chicago police officer Daniel Keenan testified that on April 11, 1991, at approximately 4:20 a.m., he and his partner, Officer Randall Curylo, were travelling southbound on Lavergne Avenue in a marked squad car. Officer Curylo noticed that a white Pontiac was parked against a dumpster in an alley near Schubert Street. Because the car looked out of place, the officers decided to investigate. As they pulled into the alley, they noticed a head pop up and then duck down below the level of the hood of the car. As Officer Keenan exited the squad car, defendant stood up and looked directly at him. When Officer Keenan shouted, "freeze, police," defendant started to run west, with the officers in pursuit. Officer Keenan lost sight of defendant when he ran into a gangway.

Officer Curylo picked up Officer Keenan and they returned to the Pontiac. There, they saw a deceased woman, later identified as Angie Gavaris, lying between the car and the garage. The car's rear view mirror was knocked off the window, cassette tapes on the front seat were in disarray, and Q-tips were strewn around the back seat.

Officer Gregory Bella testified that Gavaris had black eyes, swollen cheeks, blood coming from her mouth and neck, and a ligature mark around her neck. Her pants were open revealing her underwear, one breast was exposed, and there was blood on her blouse.

Officer Bella and his partner, Officer Frank Saenz, went to the gangway where Officer Keenan had last seen defendant. They were checking yards in the area when Officer Bella noticed the bottoms of a pair of gym shoes sticking out from the bottom of stairs leading to an enclosed back porch. When he noticed that the shoes were occupied by somebody, he pulled out his service revolver and told the person to put his hands up and not to move. Defendant lunged at Officer Bella, knocking him into a wall and grabbing his gun. A struggle ensued, and the gun fired twice. The gun went off a third time, grazing Officer Saenz, who grabbed defendant as he attempted to flee. Defendant continued to resist and the officers were unable to control him. They were able to handcuff him only after receiving assistance from two paramedics who had arrived at the scene.

Detective William Johnston testified that while investigating the case, he learned that defendant, who had been shot in the hand while resisting the arrest, was in custody at Illinois Masonic Hospital but was not communicating. In order to learn if defendant was deaf or mute, he contacted Officer Dan Levin, a certified hearing impairment signer. Officer Levin attempted to communicate with defendant using sign language but defendant did not respond. The following day, however, defendant had no trouble speaking.

Detective William Dorsch testified that he introduced himself to defendant at the hospital and defendant made a moaning sound and pointed to his ear. The next day, he interviewed defendant at Area 5 Violent Crimes. When he told defendant that he knew that he did not have a speech or hearing impediment, defendant began to speak.

After Detective Dorsch read defendant his Miranda rights, defendant told him that when he was first seen by the police officers, he was taking Gavaris' body out of the car, intending to place her in the dumpster. Defendant stated that he forced her into the car; that "she hurt me so I hurt her back;" and that he hit her and choked her until she stopped. When asked whether he had sex with her, defendant began mumbling incoherently and Detective Dorsch terminated the interview. Defendant also stated that he pretended to be deaf and dumb because he was angry at the police because they shot him during his arrest.

Assistant State's Attorney David O'Connor testified that while assigned to the felony review unit on April 13, 1991, he interviewed defendant. Although defendant initially was uncommunicative, again mumbling and shrugging his shoulders as if he did not understand, he responded affirmatively to each Miranda warning after O'Connor told him that family members had stated that he was not deaf. Defendant told O'Connor that he had a drinking problem for which he needed help. He also told O'Connor that the police officer who found him had fired a gun at his head from approximately two feet away. He said that he never resisted arrest.

Defendant further told O'Connor that he first met Gavaris at Oak Street beach, where she was jogging. They struck up a conversation and later he saw her driving in a white Camaro and she waved and stopped the car. According to defendant, they had consensual sexual intercourse in the front seat of her car, an argument ensued, and he strangled her.

Yasmeen Kahn, Gavaris' best friend, testified that she last saw Gavaris on April 11, 1991, at approximately 5:15 p.m., when Gavaris stopped by to ask her to go to the health club that evening. Gavaris did not jog or date anyone, and she never mentioned defendant.

Dr. Choi, assistant medical examiner, testified that Gavaris' vaginal area sustained bruising, soft tissue swelling, and hemorrhage consistent with forced sex. Gavaris also sustained extensive bruising to her arms and legs and received a head injury consistent with being struck by a hand or fist. She had a ligature mark on her neck and her thyroid cartilage bone was fractured. Gavaris had been strangled to death.

There was evidence that a grey jacket found inside Gavaris' car belonged to defendant's brother, that hair matching defendant's head and pubic hair was on the jacket, and that defendant wore the jacket the day of the killing. There was also evidence that head and pubic hair found on Gavaris' clothing matched defendant's head and pubic hair and that head and pubic hair found on defendant's clothing matched that of Gavaris.

During trial, defendant filed a motion in limine to bar Dr. John Kenney from testifying as an expert as to the cause of a mark on defendant's shoulder. Dr. Kenney was to opine that the mark was caused by the orthodontic braces on Gavaris' teeth. Out of the presence of the jury, Dr. Kenney testified that he was a licensed dentist and chief forensic odontologist for the Cook County medical examiner's office. Part of his research involved bite mark identification, or comparing a wound with the biting edge of the teeth of the person suspected of causing the mark. According to Dr. Kenney, that would technically be considered a toolmark, or an object marking the victim's body. Most bite mark circumstances involve a clearly identifiable injury caused by human teeth and the issue is the identification of the teeth. The instant situation, however, involved an impact injury, the nature and cause of which were initially uncertain. Dr. Kenney admitted that he was not a certified toolmark examiner. Finding that defendant's argument was a semantic one going to weight rather than admissibility, the circuit court allowed Dr. Kenney to testify.

Dr. Kenney testified that he observed in a photograph of defendant an "area of interest" on his upper left front shoulder. When he first took dental impressions from Gavaris' body for the purposes of potential bite mark identification, he was concerned with the biting edge rather than with her orthodontic brackets. He compared the models that he made with photographs of defendant, whom he had previously examined, and decided that the injury on defendant's shoulder was not caused by human teeth.

Dr. Kenney reexamined Gavaris' body, however, and took a new set of impressions by removing the arch wires, which are wires placed inside the brackets and used to move the teeth, from the dentition. He did this in order to get an accurate impression of the orthodontic brackets on her teeth. Gavaris' teeth and the brackets were stable in her mouth even with the arch wires removed. After comparing the mold he had made of the dentition and brackets on Gavaris' teeth with the injury on defendant's left shoulder, Dr. Kenney concluded that the injury was caused by the brackets, although he never attempted to eliminate other sources as the cause of the injury.

The jury found defendant, who was also charged with aggravated kidnapping, guilty of first degree murder and aggravated criminal sexual assault. Although the jury determined that he was eligible to receive the death penalty, it found sufficient mitigating factors to preclude its imposition. The ...

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