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03/28/96 PEOPLE STATE ILLINOIS v. JOHN SHERMAN COLE

March 28, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JOHN SHERMAN COLE, 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 bench trial in the circuit court of Montgomery County, the defendant, John Sherman Cole, Jr., was convicted of two counts of first degree murder, two counts of home invasion, and one count of aggravated kidnapping. A jury subsequently determined that the defendant was eligible for the death penalty and that there were no mitigating circumstances sufficient to preclude imposition of that sentence. The defendant was accordingly sentenced to death for the two first degree murder convictions and to sentences of imprisonment for the other offenses. The sentence of death has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow, we affirm the judgment of the circuit court as modified.

The facts in this case may be briefly stated. The crimes for which the defendant was convicted occurred on February 9 and 10, 1993, in Montgomery County. The defendant was arrested on February 11, 1993, in Saline County, Missouri, where he gave law enforcement officers a confession to the crimes. The victims were the mother and brother of the defendant's former girlfriend, Stacey Caulk. The principal evidence at trial consisted of Stacey's eyewitness testimony and of the defendant's inculpatory statements.

Stacey Caulk described her relationship with the defendant, as well as the events leading up to the defendant's commission of the crimes involved here. Stacey and the defendant met in November 1990, and they began living together the following July. She moved out in May 1992, because he was abusive to her. In November 1992, Stacey obtained an order of protection against him. Stacey would agree to see the defendant from time to time, however. On February 9, 1993, Stacey told the defendant that she would pick him up that evening. She did not intend to do so, however, and instead went to the home of an acquaintance. The defendant found her there later, and she refused to go with him. The defendant had to be asked to leave. As the defendant left, he said that he would be at Stacey's house when Mrs. Caulk got home from work. Mrs. Caulk's shift at a local factory ended at 11 p.m.

Stacey later picked up her brother, Shane, who was 15 years old, and returned home. There, her mother, Ruth Caulk, and Ruth's boyfriend were talking to a police officer about an earlier incident in which the defendant had broken some dishes. After the police officer and Mrs. Caulk's friend left, Stacey went up to her bedroom, where she discovered the defendant hiding in the closet. Stacey screamed and ran down the stairs, and the defendant followed her, carrying a shotgun. The defendant fired the gun at Mrs. Caulk, killing her, and shot Shane in the arm. The defendant also ran after Shane and punched him several times. The defendant later told Stacey to wrap a cloth around Shane's injured arm.

The defendant then told Shane and Stacey that he was going to make them watch him commit suicide. He ordered the brother and sister into the car, and they drove to the home of a friend with whom the defendant had been living. The defendant obtained some clothing, and they then left. The defendant was sitting in the back seat, and Stacey and Shane were in the front seat; Stacey was driving. The defendant mentioned taking Shane to a hospital. Later, however, the defendant directed Stacey to an isolated area known as "Lover's Lane." The defendant got out of the car there and told Stacey to help Shane out of the car. After searching Stacey's pockets for identification, the defendant told Stacey to check Shane's pockets. The defendant then told Stacey to return to the car. Later, Shane came over and knocked on Stacey's window. She got out of the car, and they hugged and kissed each other until the defendant said, "That is enough, get back in the car." The defendant then shot Shane. According to the evidence from the autopsy, the fatal shot was a contact wound from the back to the base of the skull.

The defendant and Stacey then returned to the Caulk residence, where Stacey picked up some clothing. They cashed checks at local gas stations and then drove to western Missouri, where they were found by law enforcement authorities on February 11. At one point they stopped to use the restroom, and Stacey left a note there asking for help and describing their car. Stacey testified that she did not try to escape during the time she was with the defendant because she was afraid of what he might do to her.

The defendant's statements were also introduced into evidence. In an initial statement to Missouri law enforcement officers following his arrest in that state, the defendant said that Ruth Caulk was killed as he fought with Ruth's friend for control of the gun, and that Stacey later shot Shane. In a second statement in Missouri, however, the defendant admitted killing both Ruth and Shane. The defendant later gave a statement in Montgomery County, in which he said that the shooting of Ruth was accidental and that Stacey shot her brother.

Forensic evidence from the investigation of the offenses was introduced by way of stipulation. The defendant did not present any evidence. At the conclusion of the trial, the judge found the defendant guilty of all 13 counts in the indictment. Because the murder of each victim was alleged in five different counts, the court entered judgment on only one count with respect to each of the victims. The judge also entered judgment on two counts of home invasion and one count of aggravated kidnapping.

The capital sentencing hearing was conducted before a jury. At the first stage of the hearing, the jury heard testimony describing his convictions for the offenses charged here, as well as testimony relating his inculpatory statements to these crimes. Evidence was also introduced establishing that the defendant was born in December 1973 and therefore was 18 years or older at the time of the present offenses. See 720 ILCS 5/9-1(b) (West 1992). At the conclusion of the first stage of the hearing, the jury determined that the defendant was eligible for the death penalty on four separate grounds: the murder of two persons, the murder of Shane Caulk in the course of the felony of aggravated kidnapping, the murder of Ruth Caulk in the course of the felony of home invasion, and the murder of Shane Caulk to prevent him from assisting an investigation or prosecution. 720 ILCS 5/9-1(b)(3), (b)(6), (b)(8) (West 1992).

At the second stage of the sentencing hearing, Stacey Caulk testified once more to the events surrounding the defendant's commission of the crimes. Stacey and her father, Lonnie Caulk, also described the impact of the crimes on their lives, and Ruth Caulk's friend described his discovery of Ruth's body the day following the murder.

The defendant introduced evidence in mitigation. This included testimony describing his upbringing, as well as his relationship with Stacey and her family. The defendant's parents, who divorced when the defendant was less than a year old, were drug users who encouraged the defendant to use drugs and alcohol. At various times the defendant lived with his mother, an aunt and uncle, his grandparents, and his father. The defendant left school when he was 16. The defendant did not testify at the sentencing hearing. Friends and relatives of the defendant, however, described his love for Stacey and the importance of that relationship to him.

At the conclusion of the second stage of the sentencing hearing, the jury determined that there were no mitigating circumstances sufficient to preclude a sentence of death. Accordingly, the trial judge sentenced the defendant to death for the murders of Ruth and Shane Caulk. Later, at a separate hearing, the trial judge sentenced the defendant to extended terms of 60 years' imprisonment for each of the two home invasion convictions and to an extended term of 30 years' imprisonment for the aggravated kidnapping conviction, with those three sentences to run concurrently.

I

The defendant raises a number of arguments concerning his convictions and death sentence, and we will consider these issues in the sequence in which they appear in the defendant's brief. The defendant first contends that the trial judge erred in denying his motion to suppress statements. The defendant asserts that law enforcement authorities failed to honor his request that questioning cease. The defendant raised this issue in advance of trial, moving to suppress his statements. The defendant did not testify at the suppression hearing, relying instead on the contents of his videotaped statements and on the testimony of the Missouri officers who questioned him. Following an evidentiary hearing, the trial judge denied the defendant's motion.

The defendant was arrested in Saline County, Missouri, on February 11, 1993, by Missouri Highway Patrol officers and was taken to a police station. After waiving the Miranda rights ( Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), the defendant provided the Missouri officers with an oral statement, which was videotaped. In the statement, the defendant said that Ruth Caulk had been shot while he and Ruth's boyfriend struggled over a gun, and that Shane Caulk had been shot by Stacey Caulk. After viewing the videotaped statement, FBI agents, who were investigating possible kidnapping charges in this case, told the defendant that his account did not match the physical evidence. According to a Missouri officer who was present at the time, the defendant responded, "I don't want to talk to you guys" and made a gesture or motion at the agents. One of the FBI agents commented that it would hurt when the needle was put in the defendant's arm, and the agents then left.

Following the departure of the FBI agents, a Missouri officer came into the room and told the defendant that the Missouri officers did not believe the videotaped statement. The defendant agreed to make another videotaped statement but said that he first wanted to call his grandfather, in Illinois. The telephone call was placed, and the defendant was overheard saying that he did not want to talk to the FBI agents but that the Missouri officers were treating him well and that he would tell them the truth. After the call was completed, the defendant waived his Miranda rights once more and was questioned further by the Missouri officers. In the second videotaped statement the defendant said that the first videotaped statement contained falsehoods and that it was he who shot Ruth and Shane Caulk.

The defendant argues that he asked that questioning cease and that the Missouri officers, by persisting with their request that he undergo a second videotaped statement, failed to honor that demand. See Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975); People v. R.C., 108 Ill. 2d 349, 91 Ill. Dec. 606, 483 N.E.2d 1241 (1985). The defendant contends that his second videotaped statement should therefore have been suppressed.

We do not agree with the defendant that he requested that all questioning cease. The dispute here centers on whether the defendant's statement, "I don't want to talk to you guys," extended generally to all questioning by any law enforcement officers, as the defendant argues, or whether it pertained only to questioning by the FBI officers, as the State asserts. We believe that the reference to "you guys" meant agents from the FBI, and that the defendant's refusal to talk applied only to the FBI agents. This conclusion is reinforced by other testimony presented at the suppression hearing. Earlier that evening, prior to the appearance of the FBI agents, the defendant told a Missouri officer that he would talk to the State troopers but not to the FBI. Following the departure of the FBI agents, the defendant called his grandfather, a former police officer, and was overheard saying that he did not want to talk to the FBI but that the Missouri officers were treating him well and that he would tell those officers the truth. Accordingly, we do not believe that the defendant asked that all questioning cease; the defendant's request was limited to interrogation by the FBI, and that request was honored. The trial judge's determination was not against the manifest weight of the evidence. See People v. Brown, 136 Ill. 2d 116, 125, 143 Ill. Dec. 281, 554 N.E.2d 216 (1990); People v. Davis, 95 Ill. 2d 1, 25, 69 Ill. Dec. 136, 447 N.E.2d 353 (1983).

II

The defendant next argues that a prospective juror, Carol Millburg, was improperly excused from service on the jury selected for the sentencing hearing. The judge removed the juror because of her views toward capital punishment, and the defendant argues that the juror did not express a disqualifying view on that subject. The relevant portion of the juror's voir dire follows:

"THE COURT: Is there anything about the nature of the charge in this case that would prevent you from rendering a fair and impartial decision?

A. I don't know that I really believe in the death penalty, so that might be a problem. I--

THE COURT: I will ask you about it.

A. Oh, okay.

THE COURT: Do you have any personal, moral or religious beliefs against imposition of the death penalty?

A. Yeah, I mean, I don't really believe in it.

THE COURT: All right, then we won't argue that.

A. Okay.

THE COURT: Would your opposition or hesitancy to the death penalty be such that it would interfere with your ability to ...


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