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05/23/96 PEOPLE STATE ILLINOIS v. FRANK REDD

May 23, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
FRANK REDD, 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 Cook County, the defendant, Frank Redd, was convicted of the murder and the rape of Aretha and Leola Bea. At a separate sentencing hearing, the same jury found the defendant eligible for the death penalty. The jury further determined that there were no mitigating circumstances sufficient to preclude imposition of that sentence. The judge sentenced defendant to death for the murders and to a term of 60 years' imprisonment for each of the rape convictions. The defendant's execution has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow, we affirm the judgment of the circuit court.

In 1985, at the close of defendant's first jury trial on the offenses charged here, he was convicted of two counts of murder and two counts of rape and sentenced to death. On direct appeal, this court reversed defendant's conviction and sentence and remanded the cause to the circuit court for a new trial and sentencing hearing. People v. Redd, 135 Ill. 2d 252, 142 Ill. Dec. 802, 553 N.E.2d 316 (1990). On remand, the defendant waived his right to the assistance of counsel and proceeded pro se at both the trial and the capital sentencing hearing. Against defendant's wishes, a public defender was assigned to be present in the courtroom as standby counsel throughout both phases of defendant's trial.

Defendant's convictions stem from events that occurred in the early morning hours of March 4, 1984. Evidence at trial revealed that on March 3, 1984, Ruby Bea went shopping and left her three daughters, Aretha, age five, Leola, age three, and Robertrese, age two, in the care of defendant's mother, Earceaner Washington, at Mrs. Washington's apartment. When Ruby returned, defendant and several other acquaintances were present at Mrs. Washington's. Ruby stayed for awhile and visited. That evening, at Ruby's request, defendant accompanied Ruby and her three children to Ruby's apartment located at the rear of the third floor of 6712 South Halstead in Chicago.

Defendant was with Ruby in her apartment when later that evening all three children went to sleep in one bed, fully clothed. After the children were asleep, Ruby and defendant left the children and went downstairs to the second-floor apartment where defendant's sister, Gloria Stewart, and Ruby's brother-in-law, Leslie Bea, lived. When Ruby went downstairs, she did not lock her apartment door because she knew that the street-level entrance to the building was locked. In Gloria's apartment, everyone sat at the table talking, except defendant, who paced the floor. Defendant left briefly, but soon returned and began pacing again.

After defendant left a second time Ruby looked down the steps to see that the street-level entrance remained locked. She did not see defendant as she looked down the stairs. She assumed he had gone into one of the other apartments in the building because insufficient time had passed for someone to leave the building. Ruby was aware that defendant knew the occupant of the apartment across the hall from Gloria's.

After approximately one hour, defendant returned to Gloria's apartment and went directly to the bathroom. At trial, Leslie Bea testified that when defendant returned the second time he had dark red spots on his shirt and red spots on his hand. Defendant conversed with Gloria and Leslie in the bathroom and then left again.

Ruby remained with Gloria and Leslie, and then later returned to her third-floor apartment. When Ruby entered her apartment, she went to the bedroom. She believed she saw two of her daughters, but not Aretha, sleeping in the bed. As she looked for Aretha, Ruby saw blood on the kitchen floor by the back door. Ruby ran down to the second floor, seeking Gloria's help to find Aretha. After asking for help, but without finding Aretha, Ruby returned to her apartment. When she went back into the bedroom to check on Leola and Robertrese, Ruby discovered that Leola was dead.

Betty Gray, the occupant of the apartment opposite Ruby's apartment, looked out of her door at about 1:30 a.m. on March 4, 1984, and saw that the door to Ruby's apartment was open. Gray entered Ruby's apartment and heard Ruby crying. Percy Hamilton, another apartment occupant in the same building, was with Ruby. Gray ran back to her own apartment and telephoned the police. She then returned to Ruby's apartment, where she found Robertrese sitting unharmed at the end of the bed. Leola was under the covers, with her mouth open and a garment twisted around her neck. Hamilton moved Leola into the living room and attempted resuscitation. Gray unsuccessfully tried to remove the item from around the child's neck.

Police arrived at Ruby's apartment at approximately 2 a.m. on March 4, 1984. When they entered they saw Leola's body on a small couch. The child was naked from the waist down, had a cloth wrapped around her throat and had blood coming from her vaginal area. In the dining room police found a child's shoe, a pair of panties, a pair of small jeans and blood on a piece of furniture. In the kitchen, the back door was ajar about 12 inches and had a nonworking refrigerator lodged against it. Ruby testified that the door was ordinarily secured shut with nails with the refrigerator pushed against the door. A pane of glass was broken out of the same door and glass was scattered on the kitchen floor.

A police officer walked out the back door, and from the third-floor landing saw Aretha's body lying in the back yard. The child was naked from the waist down and had a cloth wrapped around her throat. About 10 feet from the body was a pair of panties. Other than the footprints the police officer made when he approached the body, no other footprints were found within a 10-foot radius around the body.

Lydia Booth testified that in March of 1984, she lived next door to defendant's mother's apartment in a building approximately five blocks from where Ruby and her family lived. At approximately 12:30 or 1 a.m. on March 4, 1984, Booth was standing on the landing, near the entrances to her and defendant's mother's apartment. As Booth saw defendant come up the stairs, she noticed he was wearing blue jeans with blood on them. Booth asked defendant what had happened and defendant replied that he had fallen. He then he went into his mother's apartment. Defendant left approximately 20 minutes later. He wore a different pair of pants and he carried a bag. Booth asked defendant why he had changed his clothes, but defendant did not answer. Booth then asked defendant if he was going to the lounge where his brother worked. Defendant replied that he was going to the lounge but "he had to make a run first."

Several witnesses, including people from the apartment building, defendant, and his mother, were questioned at police headquarters on the morning of March 4, 1984. When police first interviewed defendant, he admitted he had been with Ruby Bea on March 3, but stated that he went home after partying for awhile.

After their initial interview with defendant at the police station, police went to defendant's mother's home and recovered a jacket, a sweater with a wet front and a pair of undershorts they found hanging in the bathroom with the sweater. The sweater and jacket matched the description of the clothing defendant was seen wearing at the victims' apartment building on the evening of the offenses. After police recovered the clothing, they gave defendant Miranda warnings. Defendant then gave police an account of his activities on the evening of March 3 that differed from his original story, but he continued to deny any involvement in the offenses.

Late in the evening of the March 4, police recovered a pair of bloody blue jeans from the dumpster in the alley behind the lounge where defendant's brother worked. Police again advised defendant of his rights, confronted him with the evidence and the witnesses' statements. Defendant denied any involvement, but then stated that he remembered being alone with the three children and that one was dead on the couch, but that was all that he could recall.

At approximately 9:30 p.m. that day, defendant confessed to having had intercourse with the victims and then strangling them. Defendant wrote a statement in his own hand that was witnessed and initialed by two assistant State's Attorneys. Defendant also told police that he wore blue jeans during the offenses, and identified the blue jeans that police recovered from the dumpster as the same pants he wore on the night of the murders.

The autopsy performed on Leola revealed 11 instances of external injury, including a ligature impression and abrasions on the neck, abrasions on the chest, and abrasions on the forehead. An internal exam of Leola revealed she had an extensive laceration or tear of the posterior wall of the vagina extending to the border with the rectum. All injuries were recent, and the doctor who performed the autopsy determined that Leola was alive at the time she sustained the injury to her vaginal wall. The doctor also concluded that the cause of Leola's death was strangulation.

The autopsy of Aretha revealed 22 evidences of external injury, including 14 on the face. The doctor who performed the autopsy said the injuries were recent in origin, and were consistent with someone punching Aretha in the face. The internal exam revealed that the entrance to Aretha's vagina was bloody, and her hymen was completely obliterated. The doctor stated that these injuries were consistent with her being subjected to intercourse by an adult male while Aretha was alive. The autopsy on Aretha also revealed head trauma, most significantly a hemorrhage and a fractured skull, consistent with her head being struck by a hard object. The doctor concluded that Aretha died as the result of strangulation with injuries to the brain and skull as significant contributing conditions.

Forensic testing on semen found in Leola's vagina revealed that the genetic markers in the semen were consistent with defendant's. No semen was present in Aretha's vagina but blood was present.

Panties found at the scene and identified as Leola's were stained with semen containing genetic markers consistent with defendant's. Blood samples collected from the kitchen floor were consistent with Aretha's blood.

Forensic testing revealed a semen stain on the inside fly panel of the blue jeans recovered from the dumpster behind the lounge where defendant's brother worked. Diffuse bloodstains on the jeans were consistent with the blood of Leola Bea. Hair samples found in the rear pocket of the jeans were consistent in all morphological characteristics with a hair sample taken from the defendant after he was arrested. In addition, flakes of glass scraped from the jeans were found to have a common origin with samples of glass taken from the rear door window of Ruby's kitchen. Glass fragment taken from the kitchen were marked with human blood consistent with that of Aretha and Leola.

A bloodstain was found on the sleeve of the sweater recovered from defendant's mother's house, but it was too minute to determine its origin. Clippings from defendant's fingernails tested positive for traces of blood; however, the amount of blood was insufficient to determine the type.

The defendant called only one witness, Howard Anderson, president of the Midwest Association for Sickle Cell Anemia. Defendant apparently called Anderson in an attempt to rebut forensic evidence regarding the characteristics of samples of defendant's blood. However, Anderson's testimony consisted only of his acknowledgement that in response to a letter from defendant, Anderson provided defendant with literature and information regarding certain blood characteristics.

Defendant declined to testify on his own behalf. Before the defense rested, the State and defendant agreed to several stipulations. The State stipulated to the fact that blood had been withdrawn from defendant and that in July 1992 defendant's blood sample was analyzed to determine the presence of certain characteristics and sickle cell anemia. The State also stipulated to the fact that defendant had been strip-searched at the police station.

At the close of evidence, the jury returned a verdict finding defendant guilty of the rape and murder of both Aretha and Leola Bea. Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a); Ill. Rev. Stat. 1983, ch. 38, par. 11-1(a). The following day, the matter proceeded to a capital sentencing hearing before the same jury.

At the first stage of the sentencing hearing, the State presented evidence that defendant was over the age of 18 at the time of the offenses charged. The courtroom clerk testified that the previous day's verdict forms reflected defendant's convictions of rape and murder in this case. The jury found defendant eligible for the death penalty on the basis of defendant's convictions for murder of an individual under 12 years of age whose death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(7)), defendant's convictions for multiple murders (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(3)), and the murder-in-course-of-felony aggravating factor (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(6)).

At the second stage of the sentencing hearing, the doctor who performed the autopsies on Aretha and Leola testified again and described the victims' injuries, their causes of death and his conclusions regarding the extent of pain each victim suffered.

The prosecution also presented evidence of defendant's prior offenses. Iola Warren testified that in 1979 defendant strangled and stabbed her mother and raped Iola. Geraldine Warren testified regarding the same events. Henry Van Tholen testified that defendant stole his car in 1973, and that defendant received a sentence of three years' probation for that offense. Renard McCray, testified that while he and defendant were both inmates at Pontiac Penitentiary in 1980, defendant forcibly subjected McCray to anal intercourse, threatened to kill him, and stabbed him in the neck with a shank. McCray acknowledged that he had a lengthy criminal record, and was presently in custody while charges were pending against him for possession of a stolen auto and theft.

The State also presented certified copies of defendant's prior convictions. The evidence established that defendant had previously been convicted of and was sentenced to probation for burglary in 1973, theft in 1974, and sentenced to prison for grand larceny in 1976 and rape and attempted murder in 1979.

The State stipulated to the contents of a medical report from Pontiac Penitentiary. The report stated that the resident (McRay) was examined on August 30, 1980, and no objective physical evidence of anal rape was observed. The State further stipulated to the contents of an emergency room report regarding Geraldine Warren and offered by the defense. The date of the report was not contained in the record, but the contents essentially did not contradict Geraldine Warren's testimony except that the report stated she did not know her attacker.

Defendant declined to present witnesses in mitigation, but did make a closing argument. At the conclusion of the sentencing hearing, the jury found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. In a subsequent hearing, the trial judge sentenced defendant to death for the murders of Leola and Aretha Bea and to a term of 60 years' imprisonment for each of the rape convictions. Defendant seeks review of his convictions and sentence in this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rs. 603, 609(a).

I. TRIAL ISSUES

A. Waiver of Right to Counsel

In his first trial on the present charges, defendant was represented by the office of the public defender. In this trial on remand, defendant represented himself at both the guilt and sentencing phases with appointed standby counsel from the public defender's office. The pretrial period in this case extended over three years due largely to the defendant's voluminous motions and his requests for continuances.

In his initial court appearance on remand defendant told the court he did not want the public defender to represent him, but he wished to hire a private attorney. Approximately two weeks later defendant told the court that he was unable to hire a private attorney and filed a motion to proceed pro se. The judge admonished defendant of the charges against him and the possible penalties, including the death penalty. When the judge asked defendant whether he had been represented by counsel at his first trial, defendant named the assistant public defenders who had previously represented him. The judge then told defendant he had a right to counsel and a right to appointed counsel if he was indigent. The judge warned defendant that self-representation was unwise. Each time the judge asked defendant if he understood, defendant answered affirmatively. Several times the defendant interjected that he did not want the public defender to represent him and that he or his family would be hiring a lawyer. Defendant repeated his desire to represent himself until he hired an attorney.

The trial judge found that defendant understood the nature of the charges against him, the possible penalties, and his right to counsel. The judge stated that he found that defendant had freely and intelligently waived his right to counsel. The judge noted, however, that defendant was continuing his efforts to hire private counsel.

One month later, defendant's motion for substitution of judge was granted. During the next six months, defendant appeared before several judges, one of whom subsequently left the bench and another judge who was temporarily assigned to the call. Defendant introduced himself as, "Frank Redd, pro se " to each judge. Both judges questioned defendant about his pro se status, and several times defendant told the court that he was representing himself while he attempted to hire an attorney. Defendant was granted numerous continuances at his request.

When defendant's case was permanently assigned to the next judge, she inquired about his pro se status. During the discussion, defendant told the judge he was representing himself and was trying to hire a lawyer. In his next court appearance, defendant told the judge he could not hire an attorney and he told her that he "rejected the public defender." The judge advised defendant against proceeding pro se and urged him to accept an appointed attorney as standby counsel. The judge asked defendant about his level of education. She also inquired who the private attorneys were that defendant spoke with and offered to try and have one of them appointed to represent defendant. Defendant refused to divulge the attorneys' names. The trial judge repeatedly advised defendant against representing himself. She also told defendant that if he did not hire a private attorney or allow the public defender to represent him and he proceeded pro se, she would appoint standby counsel to advise defendant. She then granted a continuance to allow defendant to make further attempts to secure private counsel.

During the next several months, despite the judge's admonishments against proceeding without an attorney, defendant continually asserted his desire to represent himself. He participated in discovery and filed numerous motions. When the judge stated that she would appoint counsel, defendant cited case law and advised the court that he would consider appointed counsel as only standby counsel.

A few months later, the judge appointed a member of the public defender's office to consult with defendant concerning his case. Defendant agreed to discuss with the assistant public defender the role defendant wished counsel to assume in his case. When defendant next appeared before the judge, the representative of the public defender's office with whom defendant met was also present. The judge articulated the limits of standby counsel's participation. The assistant public defender also addressed the court and stated that he would only function as an advisor and would not actively assist in preparing the defense. Defendant stated several more times that he did not want a lawyer and that he wanted to represent himself. Defendant indicated that he would need to talk to the assistant public defender again, but the record does not contain anymore discussion regarding appointed counsel's role.

Over one year before trial, the judge took a leave of absence. Defendant's case was assigned to another judge, who later became the trial judge. In his first appearance before the trial judge, defendant stated that he was representing himself. The judge inquired if the public defender had been appointed for consultation. The judge also asked if defendant had been advised "in detail about the perils of going pro se." The assistant public defender, acting as standby counsel, answered "yes" to both questions.

In subsequent court appearances defendant continued to file and argue numerous motions. The trial judge also asked defendant if he was exercising his right to defend himself, and defendant said yes. The trial judge advised defendant that the State was seeking the death penalty. He also told defendant that he could have an attorney represent him "free of charge," and strongly advised defendant not to represent himself. The judge asked defendant the extent of his education. The judge also noted on the record that he was aware that defendant had previously been through a criminal trial. The judge told defendant that if he chose to represent himself he would be treated as an attorney, without "special privileges." The judge then allowed defendant to consult with standby counsel. After the recess defendant requested that the court appoint counsel to represent him, but he specified that he did not want the public defender appointed. The judge agreed and appointed an attorney from the private bar.

Defendant's case was continued repeatedly to allow appointed counsel to prepare. However, defendant continued to file pro se motions, and eventually asked the court to dismiss his appointed counsel, stating that he only wanted the private attorney to function as standby counsel. The court dismissed the private counsel and then reappointed standby counsel from the public ...


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