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12/19/96 PEOPLE STATE ILLINOIS v. SHERRELL TOWNS

December 19, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
SHERRELL TOWNS, APPELLANT.



The Honorable Justice Freeman delivered the opinion of the court.

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

Following a trial in the circuit court of Madison County, a jury found defendant, Sherrell Towns, guilty of five counts of first degree murder. 720 ILCS 5/9-1(a) (West 1992). That same jury found defendant eligible for the death penalty based on the aggravating factor that he killed two or more individuals. See 720 ILCS 5/9-1(b)(3) (West 1992). It further concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the trial judge sentenced defendant to death on each count. The sentences have been stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d R. 603. For the reasons that follow, we affirm both the convictions and the sentences.

BACKGROUND

This case involves the execution-style murder of five men in Madison, Illinois. The State's primary evidence against defendant came from defendant's own admissions to both his acquaintances and to police and can be summarized as follows. On the evening of November 17, 1993, defendant, who was accompanied by Remon Williams and Michael Coleman, drove his dark green van to the trailer home of David Thompson. Thompson's trailer was widely known in the community as a place where drugs could be purchased. The trailer was surrounded by a chain fence, and its windows were secured with iron bars. Thompson carried the only key to the trailer and had complete control over who entered the premises. In fact, it was his policy to admit only those people whom he knew.

Defendant and his cohorts gained entry to the trailer because Coleman knew Thompson. Defendant and Williams sat in the living room while Coleman went into the kitchen. After a couple of minutes, Coleman called out to someone who was in a back room. When that person came out, defendant, Coleman, and Williams all brandished guns. Defendant had a 9 millimeter pistol, and Coleman and Williams both carried .380-caliber handguns. According to defendant, three other men besides Thompson were in the trailer at the time.

All four of the trailer occupants were then ordered to get down on the floor. One of the men, however, reached for defendant's gun, and defendant shot him in the chest. Although the man "went down," defendant stated that he did not die from the wound because he continued to talk the entire time they were there. Defendant and his accomplices then demanded that the men give them all of their money, and defendant and Coleman searched the trailer. When no money was found, Thompson told them that it was kept by a relative in a neighboring trailer.

Defendant bound two of the men with duct tape and accompanied Coleman and Thompson to the trailer next door. According to defendant, a man, later identified as Jeff Mosby, responded to their knock on the door. Thompson asked him to get the money, but Mosby "just kind of stood there." Defendant and Coleman pushed their way into the trailer and ordered Mosby to get down on the floor. Instead of complying, Mosby remained standing, with what defendant characterized as a "what's up type look on his face." Defendant also acknowledged that Mosby acted as if he did not really know what they were talking about. Mosby was again told to get down on the floor, and defendant shot him when he remained standing. The subsequent search of Mosby's trailer revealed no money. When defendant and Coleman asked Thompson why there was no money in the trailer, Thompson told them that Mosby's aunt did not trust Mosby with the money because he "smokes dope," and that she must have put it in the trunk of her car.

Upon their return to Thompson's trailer, defendant bound Thompson with duct tape. At that time, defendant, Coleman, and Williams decided to leave. As they started to depart, they saw a car come down the road so they returned to the trailer. Defendant and Williams asked Coleman what he wanted to do because "these guys [knew his] face," but did not know either of them. Coleman indicated to them that they should just leave them alone. But he then changed his mind, saying, "They know me. Let's do them." Defendant claimed that the four men in Thompson's trailer were then shot by Williams, who used defendant's 9 millimeter pistol. As the three were leaving Thompson's trailer, defendant saw a car pull into Mosby's driveway.

Thirteen-year-old Candice Branch saw defendant and two other men in front of Thompson's trailer while she was walking home from a school program at approximately 10 p.m. on November 17. She heard one of the men say "let's go do it," or "lets go smoke these." Branch became frightened and immediately ran home.

Kimberly Fulton returned to the trailer home she and her children shared with Mosby at approximately 10 p.m. on the day in question. As she walked to her trailer, Fulton noticed three men leave Thompson's trailer. The three men then sped away in a dark green van which had been parked in front of Thompson's trailer. Fulton entered her trailer and found Mosby's body sprawled across the floor. Mosby had been shot once, with the bullet passing through his left arm and into his chest. When Fulton asked her children what had happened, they responded that the "boys next door" had done it. Fulton then went to the trailer next door and saw that the front door was slightly ajar. Fulton returned to her trailer and dialed 911.

When the police arrived, they discovered Cedric Gardner, Thompson's roommate, lying in Thompson's kitchen. Gardner's hands, feet, and mouth had been bound with duct tape, and he had been shot once in the head. Police also found the body of Bedford Jennings, bearing a similar wound and bound in similar fashion. Thompson's body was also similarly taped, but it appeared as though he had pulled the tape apart from his hands. His body was found in the front foyer of the trailer. The fourth victim, Marion Jennings, who had not been bound, was shot once in the right side of the head and once in the chest. All of the victims were dead except for Gardner and Mosby, who were taken to a hospital where they were later pronounced dead. Police retrieved various items of physical evidence from both Thompson's and Mosby's trailers, including the duct tape, bullet casings, and papers.

Based on statements given by Fulton and Branch, police sought the occupants of the dark green van. On the day after the murders, police stopped defendant while he was driving a dark green van. At that time, police merely ticketed defendant for driving on a suspended license. Defendant accompanied police to the station for an interview after the traffic stop and answered their questions regarding his whereabouts on the night of the murders. He told police that he had spent the day with his daughter and then had gone to his girlfriend's home at 10 p.m. After checking on defendant's alibi, police informed him that his girlfriend's statement was inconsistent with his. Defendant then told the officers that he had met with Michael Coleman and two other men at about 9 p.m. The foursome traveled to East St. Louis where they remained until 11 p.m. Defendant then went to his girlfriend's home where he spent the night. Police eventually released defendant from custody because they did not have enough evidence to charge him with the crimes. Defendant left the area to visit a sick relative in Mississippi on November 21, 1993.

Meanwhile, police conducted forensic examinations of the physical evidence found at the scene of the crimes. The bullets found at both trailers were identified as 9 millimeter, and all were fired from the same weapon. Defendant's fingerprints were discovered on the duct tape as well as on the papers found in Mosby's trailer. On November 22, 1993, police filed a five-count information against defendant charging him with the murders. According to the information, all five of the victims died from gunshot wounds to the head.

Detectives Scott Sandidge and Rick Weissenborn located defendant in Cahoa County, Mississippi, and questioned him at the county jail during the afternoon of November 24, 1993. After defendant had been advised of his Miranda rights, the officers showed him the information which charged him with the five murders. Defendant told the officers that he "didn't kill no five people." Eventually, defendant admitted his involvement in the murders as detailed above. Defendant told the officers that he would "stand up for what [he] did." However, he maintained that he had only shot two of the five victims. During the statement, the detectives showed defendant the criminal information which had been filed in the case. After reading it, defendant stated that it contained an error because Jeff Mosby had not been shot in the head but, rather, the chest. At trial, both detectives indicated that such information had not been released to the general public.

Defendant testified in his own behalf at trial. He denied making any of the statements to the police and denied any involvement in the crimes. Although he admitted that he had rented a dark green van during the time in question, defendant denied using it during the evening hours of November 17, 1993. Instead, both he and Michael Coleman drove Coleman's car to a night club in St. Louis. At approximately 10 p.m., they went to the home of Coleman's uncle and met Eric Coleman, Christopher Whitehead, Yulanda Allen, and a few of her friends. He told Allen that he would stop by her home later. Defendant and his friends then went to a fast food restaurant and bought some liquor. He arrived at Allen's home around 11 p.m.

In rebuttal, both Marshall Bradley, defendant's cousin, and Katina Foots, defendant's acquaintance, testified that they heard defendant admit his involvement in the crimes in a manner consistent with his statement to police. Defendant made the statements two days after the murders. Both witnesses stated that defendant referred to the children who had been in Moseby's trailer at the time and wondered if they could identify him. Defendant also stated that he would have shot the children, but did not do so because he did not think they would be able to identify him.

Following closing arguments and instructions, the jury found defendant guilty on all five counts of murder. After the first stage of the sentencing hearing, the jury found defendant eligible for the death penalty, as the defendant was over 18 years of age and had been convicted of murdering at least two individuals. At the second stage of the hearing, the State presented the testimony of several relatives of the victims as well as evidence of defendant's previous convictions for delivery of a controlled substance and aggravated assault. The State also presented the testimony of two witnesses who were incarcerated in the county jail with defendant prior to trial. Neither man heard defendant express any remorse for the crimes. In fact, one of the men, Michael Lockett, heard defendant admit to the shootings and state that "he would live to kill again, look how many [he'd] gotten away with."

Defendant presented evidence in mitigation consisting of the testimony of several relatives and friends who related that defendant had been brought up by his maternal grandmother and various members of his extended family. Although defendant had been sick at birth, he overcame his illness and developed into a healthy child. The witnesses stated that defendant helped around the home with chores and was obedient. Each testified that defendant enjoyed a warm relationship with his three children, particularly his young daughter.

At the conclusion of the second stage of the sentencing hearing, the jury found no mitigating circumstances sufficient to preclude imposition of the death penalty. Accordingly, the circuit court sentenced defendant to death for each of the five murders. The circuit court later denied all post-trial relief sought by defendant.

ANALYSIS

I. Trial Issues

Improper Cross-Examination

Defendant first argues that the circuit court denied him a fair trial by allowing the State to engage in improper cross-examination. Specifically, defendant points to the following question posed to him by the prosecutor immediately after defendant testified that talking to the police can get a person killed:

"Q. Let's talk about what will get you killed. Leaving witnesses alive can do that.

MR. HAWKINS [defense counsel]: Objection, Your Honor.

THE COURT: Sustained."

Defendant contends the prosecutor later returned to the improper theme of leaving witnesses alive by referring to defendant's direct examination. At that time, the prosecutor attempted to ask defendant about his concern "that witnesses are left around afterwards-." The prosecutor did not complete the question because the circuit court sustained defense counsel's objection. In an unrelated matter, defendant also claims that the prosecutor also improperly asked ...


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