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05/23/96 PEOPLE STATE ILLINOIS v. OASBY GILLIAM

May 23, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
OASBY GILLIAM, APPELLANT.



The Honorable Justice Freeman delivered the opinion of the court:

The opinion of the court was delivered by: Freeman

The Honorable Justice FREEMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Jefferson County, defendant, Oasby Gilliam, was convicted of first degree murder, aggravated kidnapping, and robbery. 720 ILCS 5/9--1(a)(1), 10--2(a)(3), 18--1(a) (West 1992). At a separate sentencing hearing, the same jury found defendant eligible for the death penalty and further determined that there were no mitigating circumstances sufficient to preclude imposition of that sentence.

The trial court sentenced defendant to death on the murder conviction and to concurrent, extended 30-year prison terms on the aggravated kidnapping and robbery convictions. The death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rs. 603, 609(a). We affirm defendant's convictions and sentences.

BACKGROUND

Defendant was charged in a seven-count information with four counts of first degree murder based on intent, recklessness, and the predicate felonies of robbery and aggravated kidnapping; one count of aggravated kidnapping; and two counts of robbery alleging the taking of an automobile and a wristwatch. Defendant was tried on all counts.

The State's evidence at trial was essentially as follows. On June 19, 1992, at approximately 2:15 p.m., bartender Russell Turner was alone at work at Sovereign Liquors, at 6202 N. Broadway in Chicago. Defendant entered the tavern and asked to use the restroom. Before he left, defendant put down a plastic grocery bag and ordered a been The bag contained a paper bag that held two bricks. When he returned, defendant changed his order. As Turner leaned over to fill a glass with ice, defendant struck Turner over the head with the bag, and a vicious struggle ensued. Defendant repeatedly pounded and stamped on Turner and struck him with a brick and a liquor bottle.

Turner eventually maneuvered himself such that he struggled to pull defendant out the tavern door, while defendant pulled Turner to keep him inside. Because Turner was covered in his own blood, defendant slipped out of Turner's hands and Turner went out the door. Once Turner was outside, defendant immediately ran out of the tavern. Defendant ran south on Broadway and then west on nearby Granville Avenue.

The victim in this case, Aileen D'Elia, lived on the first floor of a two-flat building at 6223 N. Lakewood Avenue. The victim was 79 years old, 5 feet 2 inches tall, and wore dentures. She wore a Medic Alert bracelet, wedding and engagement rings, a ring containing an aquamarine stone, earrings, a wristwatch, and a silver bracelet. Also, the victim owned a brown 1986 Chevrolet Caprice. The car was in good condition because the victim kept it in the garage behind her home.

On June 19, 1992, between 2:20 and 2:40 p.m., the victim returned home, driving her car onto a cement slab next to her garage. At approximately 4:30 p.m., the victim's granddaughter, who lived on the second floor of the building, noticed that the victim's apartment door was ajar and her car was missing.

On July 1, the victim's corpse was found in a field near Illinois Route 15, approximately 2 1/2 miles from Interstate 57, in Jefferson County. The body was in a wooded area not visible from an access road 30 yards away. Near the body, crime technicians found the victim's Medic Alert bracelet and dentures, and a watch crystal. Technicians also found two plastic grocery bags from the grocery store where the victim shopped. One of the bags had a red substance with gray hairs on it. Subsequent laboratory examination revealed the hairs to be consistent with those of the victim. The hairs were broken off at the roots, consistent with having been struck by a blunt object. The victim's identification and driver's license were subsequently found in a bushy area next to an exit ramp of Interstate 57.

The victim died from multiple skull fractures caused by multiple blows to the head and face. The fractures were consistent with being struck by a tire iron. Manual strangulation possibly contributed to the victim's death. The victim may have lived for several hours after the attack.

On the afternoon of June 20, 1992, defendant arrived in Greenwood, Mississippi, to visit an aunt, Theresa Caruthers, and a cousin, Thelma Scott-Robinson. Defendant drove a brown, four-door Chevrolet in good condition with Illinois license plates. Robinson asked defendant about stains in the back seat of the car that appeared to her to be blood. Defendant replied that children had spilled juice on the seat. She also noticed "a costume jewelry * * * old-time Indian like ring" on the front seat of the car. Defendant said that he bought it. At one point during his visit, defendant appeared to Robinson to be nervous and restless. She asked him what was wrong and defendant replied, "If you only knew."

Chicago Police Detective Ray Kaminski investigated the attempted robbery at Sovereign Liquors. The attack on Turner lasted approximately 10 to 15 minutes. Defendant struck Turner approximately 20 times in the head with a brick. Turner received 48 stitches on his head at a nearby hospital. Defendant's wallet was subsequently found in the tavern; the wallet contained his identification and photograph. Turner subsequently identified defendant from a photograph array and a police lineup, and in court. Although defendant was charged with the attempted robbery of Turner, the charge was dismissed when the State proceeded on the first degree murder charge in this case.

Inspecting defendant's wallet, Kaminski found a slip for a nearby pawn shop where defendant's girlfriend, Daphne "Trina" Townsend, worked. Townsend told Kaminski that she had last seen defendant on the morning of June 19.

Detective Kaminski also interviewed one of defendant's sisters, Jill Traylor; defendant's employer, Charles Mickins; and Turner. The police then sought through the Federal Bureau of Investigation (FBI) a federal warrant for defendant's arrest. The police also contacted Caruthers in Greenwood. Kaminski also maintained contact with Townsend and another of defendant's sisters, Edna Bridges.

During the week of August 11, 1992, defendant returned to Chicago and stayed with Bridges. On the morning of August 18, defendant directed Bridges and Townsend to telephone police and arrange for his surrender. Townsend first attempted to telephone Chicago Police Detective Anne Chambers, who had investigated the murder of Townsend's and defendant's son. Chambers had known Townsend for approximately one year and had met defendant two days prior to the victim's disappearance. Chambers, however, was not at the station. Townsend then attempted to telephone Detective Kaminski, but he too was unavailable. Bridges then telephoned Area 6 police headquarters and talked to someone else.

At approximately 12:30 p.m., Detective Kaminski and three additional officers arrived at Bridges' apartment building. The officers arrested defendant and, pursuant to Bridges' request, took him down the back stairs. When they reached the squad car, Kaminski handcuffed defendant, gave him his Miranda warnings, and put him in the car.

Defendant arrived at Area 6 police headquarters at approximately 1:30 p.m. At approximately 1:30 a.m. on August 19, 1992, he confessed.

Defendant's confession was essentially as follows. On June 19, 1992, as defendant left a Broadway bus at Granville Avenue, he saw Turner enter Sovereign Liquors. Defendant believed that Turner had punched defendant's pregnant girlfriend in the stomach the preceding week. Defendant entered the tavern with a brick and a fight ensued.

As defendant ran out of the tavern, two unknown men chased him into an alley. Defendant happened upon the victim getting in or out of her car. He approached her and ordered her to get in the car. The victim did, with defendant, who ordered her to drive. Defendant eventually ordered the victim to drive to a parking area at the Foster Avenue beach. Defendant then ordered the victim to get out of the car and to get in the trunk. She did, and defendant locked her in the trunk.

As defendant drove south on Interstate 57, he considered what to do with the victim, who could identify him. Between 7:30 and 8 p.m., defendant exited the interstate and drove to a field bordered by trees. He released the victim from the trunk. While she stood near the car, defendant took a tire iron from the trunk. Defendant then struck the victim two or three times on the head with the tire iron. The victim fell to the ground, but continued to move. Defendant struck the victim several more times on the head with the tire iron until she was still. Defendant then dragged the victim into a wooded area. He returned to the car, cleaned the tire iron, replaced it in the trunk, and continued south on Interstate 57. Defendant also took $10 that he found in the car.

Defendant arrived in Greenwood, Mississippi, the next day. He stayed for five or six hours and visited relatives. Defendant then drove to Dallas, Texas, where he stayed for five weeks. At the end of that time, defendant sold the victim's car for $150. The buyer subsequently told defendant that the car was shipped to Mexico. It has never been found.

After selling the victim's car, defendant traveled through Louisiana, Mississippi, and Alabama. Defendant then took a bus to Chicago, where he arrived on August 11, 1992. He stayed with Bridges until his surrender on August 18.

The defense case was essentially that the State failed to prove defendant guilty of the charged offenses beyond a reasonable doubt. The defense asserted that police coerced defendant into falsely confessing. At the close of the evidence, the jury returned three general verdicts of guilty, one each for first degree murder, aggravated kidnapping, and robbery.

The same jury was instructed, inter alia, that defendant would be eligible for the death penalty if it found that he killed the victim in the course of committing another felony, in this case either robbery or aggravated kidnapping. See 720 ILCS 5/9--1(b)(6) (West 1992). The jury returned a general verdict finding that the statutory aggravating factor existed and that defendant was eligible for the death penalty.

At the second stage of the capital sentencing hearing, the State's case in aggravation included the following evidence. In March 1984, in Greenwood, Mississippi, defendant was convicted of burglary, i.e., stealing a car stereo, and received a three-year sentence of probation. In November 1984, defendant was convicted of residential burglary and received a four-year sentence to the Mississippi State Penitentiary. Defendant's probation for the prior conviction was revoked due to the subsequent burglary conviction. Defendant was sentenced to a three-year concurrent prison term on the prior conviction.

In February 1991, defendant pled guilty to the May 1990 burglary of a Chicago liquor store. Defendant received a four-year sentence of probation to be monitored by the Treatment Alternative Street Crimes (TASC) program. However, defendant failed to comply with the terms of his probation, and a warrant was issued for his arrest.

At approximately 4:30 a.m. on May 10, 1992, defendant entered a Kinko's Copy Center at 6429 N. Sheridan Road in Chicago. Defendant and the assistant manager, Rajun Callumkal, were alone. Defendant eventually forced Callumkal down a hallway, beat him with a brick, and took his wallet and money from the cash register. Callumkal received five or six stitches on his head. He identified defendant from a photograph array and a subsequent police lineup.

Defendant's case in mitigation included the following evidence. Rev. Charles Mickins and his wife, Araina Mickins, owned a photocopy shop in downtown Chicago. They provided photocopying services to area law firms and similar businesses. From July 1991 to June 19, 1992, the Mickins employed defendant at first as a machine operator and later as a supervisor. Defendant was a good worker, was instrumental in the growth of the business, and performed acts of kindness.

According to two of defendant's sisters, Gloria and Jill Traylor, defendant had four brothers and six sisters by different fathers. Defendant's mother died when he was eight years old. Defendant lived with various aunts in Mississippi and Chicago. Defendant was a father figure to Gloria and was very close to Jill. Defendant gave both of them his attention and money.

According to Townsend, defendant met her in 1990, and they began living together approximately one year later. Defendant was considerate; he performed housework when she was pregnant and tired. Approximately 2 1/2 years into their relationship, Townsend discovered that defendant had a drug problem. Three or four months after defendant entered the TASC program, their son, Oasby III, was murdered. Their second child, KeShara, was five days old when defendant fled from Chicago. The Mickins, Jill Traylor, and Townsend all testified that defendant was very upset when his son was beaten to death in 1991.

At the close of the sentencing hearing, the jury found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty. The trial court accordingly sentenced defendant to death on the first degree murder conviction. The court also sentenced defendant to concurrent, extended 30-year prison terms on the aggravated kidnapping and robbery convictions.

Defendant appeals. Additional pertinent facts will be discussed in the context of the issues raised on appeal.

ARGUMENT(S)

We will consider defendant's allegations of error in the sequence in which the alleged errors occurred in the proceedings below.

Pretrial

Defendant contends: (1) his confession was involuntary; (2) the trial court made two erroneous rulings regarding his motion to re-open the suppression hearing; (3) venue properly laid in Cook County and not in Jefferson County on the charge of robbery of the victim's car; and (4) the trial court erroneously refused a jury instruction on venue tendered by the defense.

Voluntariness of Confession

Defendant claims that the trial court should have granted his motion to suppress his confession because it was involuntary. The test for voluntariness is not whether the accused wanted to confess or would have confessed in the absence of interrogation. Suspects typically do not confess to the police purely of their own accord, without any questioning. People v. Terrell, 132 Ill. 2d 178, 198, 138 Ill. Dec. 176, 547 N.E.2d 145 (1989). Rather, the test of voluntariness is whether the defendant made the statement freely, voluntarily, and without compulsion or inducement of any sort, or whether the defendant's will was overcome at the time he or she confessed. People v. Clark, 114 Ill. 2d 450, 457, 103 Ill. Dec. 102, 501 N.E.2d 123 (1986), citing People v. Prim, 53 Ill. 2d 62, 70, 289 N.E.2d 601 (1972).

Whether a statement is voluntarily given depends upon the totality of the circumstances. The question must be answered on the facts of each case; no single fact is dispositive. Factors to consider when determining voluntariness include: the defendant's age, intelligence, background, experience, mental capacity, education, and physical condition at the time of questioning; the legality and duration of the detention; the duration of the questioning; and any physical or mental abuse by police, including the existence of threats or promises. People v. Melock, 149 Ill. 2d 423, 447-48, 174 Ill. Dec. 857, 599 N.E.2d 941 (1992); see People v. Haymer, 154 Ill. App. 3d 760, 770, 107 Ill. Dec. 323, 506 N.E.2d 1378 (1987) (collecting cases).

The State has the burden of establishing the voluntariness of the defendant's confession by a preponderance of the evidence. The trial court's determination of the voluntariness of a confession will not be disturbed on review unless it is against the manifest weight of the evidence. People v. Redd, 135 Ill. 2d 252, 292-93, 142 Ill. Dec. 802, 553 N.E.2d 316 (1990); Clark, 114 Ill. 2d at 457. We note that in reviewing the trial court's finding, we may consider the entire record, including trial testimony. People v. Stewart, 104 Ill. 2d 463, 480, 85 Ill. Dec. 422, 473 N.E.2d 1227 (1984).

The State's evidence was essentially as follows. Defendant arrived at Area 6 police headquarters on August 19, 1992, at approximately 1:30 p.m. Police placed defendant in an interview room and handcuffed him to a wall. The handcuff wall rings were between 3 1/2 and 4 feet above the floor; enabling a person so handcuffed to sit in a chair. Defendant was handcuffed whenever he was alone to prevent his escape or harm to himself. He was uncuffed at all other times.

At approximately 2 p.m., Detective Kaminski returned and again read defendant the Miranda warnings, which were additionally printed on a notice posted on the wall. Throughout the series of interrogations, defendant stated that he understood the Miranda warnings whenever they were read to him. Kaminski informed defendant that he was under arrest for the attempted robbery of Sovereign Liquors and for the abduction and murder of Aileen D'Elia. Kaminski spoke with defendant for about 10 to 15 minutes, and left the room. He returned about 10 minutes later with Chicago Police Sergeant Steve Peterson, who was assigned to the FBI Fugitive Task Force. They spoke with defendant for about one-half hour.

After that conversation, police asked Bridges and Townsend if they would come to the station for questioning. The police wanted to know if defendant had told Bridges and Townsend anything pertaining to the investigation. They came voluntarily; police officers gave them a ride. Also during this time, Detective Kaminski and the other officers involved contacted Russell Turner and arranged a lineup for him to view, and made reports.

At approximately 6:30 p.m., Detective Kaminski gave defendant two bologna sandwiches and something to drink. Detective Kaminski then spoke with Bridges and Townsend. At approximately 9 p.m., Turner identified defendant from a lineup. At 10:30 p.m., Kaminski informed defendant that he was identified in the ...


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