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03/18/97 PEOPLE STATE ILLINOIS v. LARRY L. SIMPSON

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT


March 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LARRY L. SIMPSON, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 93--CF--441. Honorable John D. O'Shea, Judge Presiding.

Released for Publication April 23, 1997.

Present - Honorable William E. Holdridge, Justice, Honorable Kent Slater, Justice, Honorable Thomas J. Homer, Justice. Justice Holdridge Delivered The Opinion OF The Court. Homer, J. concurs; Slater, J., partially concurs and partially dissents.

The opinion of the court was delivered by: Holdridge

JUSTICE HOLDRIDGE DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant Larry L. Simpson was convicted of the first degree murder (720 ILCS 5/9--1(a)(1) (West 1992)) and aggravated criminal sexual assault (two counts) (720 ILCS 5/12--14(a)(2), 13(a)(1) (West 1992)) of five-year-old Amber Sutton. The court imposed consecutive sentences of natural life for murder and 60 years each for the Class X aggravated criminal sexual assaults (730 ILCS 5/5--8--2(a)(2), 5--5--3.2(b)(2), (b)(4)(i) (West 1992)).

The issues on appeal are whether the trial court erred in (1) denying defendant's motion for a mistrial; and (2) imposing extended term sentences for the Class X offenses. For reasons that follow, we affirm defendant's convictions and sentences.

FACTS

At trial, the State introduced 79 witnesses who testified about the May 29, 1993, abduction and murder of Amber Sutton. Amber's mother, Anna Martin, testified that defendant came to their home around 5:30 p.m. Amber asked for Martin's permission to go play with defendant's daughter, Ashley. Martin denied the request and told Amber she had to come inside to eat. After a few bites of dinner, Amber was allowed to go back outside to play with children in the neighborhood. She was never again seen alive by her family.

Between 6 p.m. and 6:30 p.m., several witnesses saw Amber and four-year-old Damion Barnett walking with defendant in the area between Martin's home and an abandoned power house about seven blocks away. Shelly Webb and Shawn Lee observed defendant playing with the children in the vicinity of the power house and then picking up the little girl near a broken window of the building. About 10 minutes later, they saw defendant walking away from the building alone.

At 6:55 p.m., police dispatcher Beth VanDyle received two 911 calls. The first reported Damion Barnett missing, and the second reported that a little boy was found in the parking lot of Spencer Towers apartments. Damion was unharmed when his mother picked him up a few minutes later at Spencer Towers.

Between 6:30 p.m. and 7 p.m., defendant arrived at the home of his friend, Arthur Wilson. Defendant kept his clothes at Wilson's home. He washed up and then left again. Around 7:15 p.m., defendant was walking with a bundle of clothes in a grocery bag when he encountered Joe Liddell. Liddell gave defendant money for liquor and agreed to meet him at the home of their friend, Oscar Morrison. Defendant threw the bag into some bushes. He later joined friends at Oscar's, but left on Liddell's bicycle when the police entered the neighborhood.

Shortly after 10 p.m., Shawn Lee telephoned the police to report his earlier sighting of the little girl reported missing on the evening news. He led the police to the power house where Amber's bloodied and badly beaten body was found. Around the same time, defendant visited a gas station and then walked to Jim's Rib Haven. The station attendant, who had been alerted that the police were looking for defendant, called the police. At 10:30 p.m., the police apprehended defendant in the restroom of the restaurant.

Two days later, Liddell recovered the bag of clothes that defendant was wearing when he was seen with the two children. Liddell turned the parcel over to the police. Forensic evidence established that Amber's blood was spattered on the clothing, and debris from the floor of the power house was on defendant's shoes. Pathologist Dr. Mary Jumbelic testified that she performed an autopsy and determined that Amber died from strangulation and a skull fracture caused by blunt trauma. She could also have died from bleeding of the vagina, the anus or internal organs.

Christine Arnold, defendant's girlfriend, testified for the State as well as the defense. As a witness for the State, Arnold said she kicked defendant out of her house following an argument on May 24, 1993. Testifying for the defense, Arnold said that she and defendant had a normal sexual relationship. On cross-examination, Arnold stated that defendant enjoyed anal sex. The prosecutor then asked Arnold what she and defendant had argued about the day she kicked him out. Arnold responded, "Because I wouldn't give him no sex and he talked about kidnapping my daughter."

Defense counsel moved for a mistrial. In chambers, the prosecutor stated that he had interviewed Arnold on several occasions, and she had always said that the argument was about sex. Arnold had never mentioned a threat against her daughter. Noting the quantity of evidence already presented, the court denied defendant's motion. The court instructed the jury that the testimony was improper and that they should disregard it. On redirect, defense counsel clarified that the daughter Arnold had referred to was defendant's own child.

Following their deliberations, the jury returned verdicts finding defendant guilty of murder and aggravated criminal sexual assault, as charged. The jury chose not to impose the death penalty. The court subsequently found defendant eligible for natural life imprisonment for murder. 730 ILCS 5/5--8--1(a)(1) (b) (West 1992). In addition, the court imposed 60-year, extended term sentences for aggravated criminal sexual assault.

MOTION FOR MISTRIAL

Defendant first argues that the trial court should have granted his motion for mistrial because the prejudice caused by Arnold's testimony could not be cured by the court's admonishments. The State concedes that Arnold's unsolicited comment was improper, but contends that defendant has failed to show that he was prejudiced by it.

Where improper testimony is inadvertently introduced in a jury trial, the error generally may be cured by sustaining an objection and instructing the jury to disregard the testimony. People v. Speight, 153 Ill. 2d 365, 606 N.E.2d 1174, 180 Ill. Dec. 97 (1992). Whether a mistrial should be granted in such cases is within the broad discretion of the trial court. People v. Winfield, 113 Ill. App. 3d 818, 447 N.E.2d 1029, 69 Ill. Dec. 594 (1983). The trial court's decision should not be disturbed on appeal unless the defendant shows that he was prejudiced by the testimony. People v. Mabry, 223 Ill. App. 3d 193, 584 N.E.2d 507, 165 Ill. Dec. 328 (1991).

In this case, Arnold's non-responsive testimony was clearly unprovoked and surprised the prosecutor. Before ruling on defendant's motion for mistrial, the trial judge noted that the comment carried a high risk of prejudice because, if believed by the jury, it indicated defendant's intent to kidnap a child. See People v. Bailey, 249 Ill. App. 3d 79, 616 N.E.2d 678, 186 Ill. Dec. 488 (1993). However, the judge denied the motion because of the overwhelming evidence of guilt already presented. In open court, the judge admonished Arnold to confine her comments to the questions put to her and admonished the jury to disregard the witness' reference to kidnapping. Then, on redirect examination, defense counsel asked a precise, leading question to clarify that it was defendant's own daughter that Arnold had referred to. No further reference was made to the improper testimony.

Based on the vast amount of unmet circumstantial evidence connecting defendant to the murder, we do not find that the brief, unsolicited comment by Arnold could possibly have affected the jury's verdict. See People v. LeCour, 172 Ill. App. 3d 878, 527 N.E.2d 125, 122 Ill. Dec. 753 (1988). Numerous witnesses saw defendant walking with the victim in the direction of the abandoned power house within minutes of her disappearance from home. Defendant was observed picking up the victim near a broken window of the building where her body was later found and then leaving alone. Witnesses testified that defendant subsequently washed himself, changed clothes, discarded the clothes with the victim's blood on them, and then drank with friends.

Defendant's consciousness of guilt was further demonstrated by his reactions as the police closed in on him. See People v. McDonald, 168 Ill. 2d 420, 660 N.E.2d 832, 214 Ill. Dec. 125 (1995). When the police came into the neighborhood where defendant was partying after the murder, he fled. When the police next caught up with him at Jim's Rib Haven, defendant tried to hide in the restroom. Under the circumstances, we conclude that defendant was not prejudiced by Arnold's reference to kidnapping, any potential prejudice was cured by the trial court's admonishments, and the court did not err in denying defendant's motion for a mistrial.

SENTENCING

Defendant next contends that the court lacked authority to impose extended term sentences for his two aggravated criminal sexual assault convictions. We disagree.

Section 5--8--2 of the Unified Code of Corrections provides that a defendant may not be sentenced

"in excess of the maximum sentence authorized by Section 5--8--1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5--5--3.2 were found to be present. Where the judge finds that such factors were present, he may sentence an offender to the following:

(1) for first degree murder, a term shall be not less than 60 years and not more than 100 years;

(2) for a Class X felony, a term shall be not less than 30 years and not more than 60 years." 730 ILCS 5/5--8--2(a) (West 1992).

The statute stands for the general rule that where a defendant is convicted of multiple offenses of varying classifications, only the offenses within the most serious class may draw an extended term. People v. Jordan, 103 Ill. 2d 192, 469 N.E.2d 569, 82 Ill. Dec. 925 (1984).

However, the statute fails to address the situation in which an indeterminate sentence such as natural life imprisonment is imposed. A discretionary sentence of life imprisonment is authorized by section 5--8--1 for first degree murder (730 ILCS 5/5--8--1(a)(1)(b) (West 1992)), but obviously that sentence cannot be extended pursuant to section 5--8--2(a)(1). Accordingly, it has been held that an extended term may be imposed for the most serious conviction other than murder where a defendant is convicted of multiple offenses and life imprisonment is imposed for murder. People v. Young, 124 Ill. 2d 147, 529 N.E.2d 497, 124 Ill. Dec. 516 (1988).

As defendant correctly notes, the rule of Young has not been applied consistently. Compare People v. Henderson, 142 Ill. 2d 258, 568 N.E.2d 1234, 154 Ill. Dec. 785 (1990) (where death penalty imposed for murder, supreme court reduced aggravated criminal sexual assault sentence to non-extended term), and People v. Askew, 273 Ill. App. 3d 798, 652 N.E.2d 1041, 210 Ill. Dec. 65 (1st Dist. 1995) (where life imprisonment imposed for murder, court reduced armed robbery sentence to non-extended term), with People v. Spears, 256 Ill. App. 3d 374, 628 N.E.2d 376, 194 Ill. Dec. 879 (1st Dist. 1993) (where life imprisonment imposed for murder, court affirmed extended term sentence for attempted murder), and People v. Fauntleroy, 224 Ill. App. 3d 140, 586 N.E.2d 292, 166 Ill. Dec. 334 (1st Dist. 1991) (where life imprisonment imposed for murder, court affirmed extended term sentence for armed robbery). However, we find Young well-reasoned, and we do not believe that our supreme court intended to overrule Young by reducing the defendant's aggravated criminal sexual assault sentence in Henderson. Cf. Askew, 273 Ill. App. 3d 798, 652 N.E.2d 1041, 210 Ill. Dec. 65.

In this case, in addition to murder, defendant was convicted of two Class X aggravated criminal sexual assaults, for which the maximum non-extended sentence was 30 years each. 730 ILCS 5/5--8--1(a)(3) (West 1992). After imposing a natural life sentence for murder, the court found that aggravating factors were present, including the victim's age (730 ILCS 5/5--5--3.2(b)(4) (i) (West 1992)) and the fact that the offenses were accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty (730 ILCS 5/5--5--3.2(b)(2) (West 1992)). Therefore, applying the statute pursuant to Young, we hold that the trial court did not err in imposing 60-year, extended term sentences for defendant's aggravated criminal sexual assault convictions (730 ILCS 5/5--8--2(a)(2) (West 1992)).

HOLDING(S)

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

HOMER, J. concurs; SLATER, J., partially concurs and partially dissents.

The Honorable Justice SLATER, concurring in part and dissenting in part:

I dissent from the majority's judgment with regard to the imposition of extended-term sentences for each of the Class X aggravated criminal sexual assaults. The majority recognizes the general rule that where a defendant is convicted of multiple offenses of varying classifications, only the offenses within the most serious class may draw an extended term. People v. Jordan, 103 Ill. 2d 192, 469 N.E.2d 569, 82 Ill. Dec. 925 (1984). However, the majority relies on the supreme court's decision in People v. Young, 124 Ill. 2d 147, 529 N.E.2d 497, 124 Ill. Dec. 516 (1988), as an exception to this rule.

In Young, the supreme court, following the rationale set forth in People v. Neal, 111 Ill. 2d 180, 489 N.E.2d 845, 95 Ill. Dec. 283 (1985), concluded that section 5--8--2 of the Unified Code of Corrections (730 ILCS 5/5--8--2(a) (West 1992)) could logically apply only to murder convictions where the defendant was sentenced to a term of years shorter than the extended term. Consequently, as section 5--8--2 could not apply to sentences of death or natural life, a defendant convicted of multiple offenses could receive an extended-term sentence for the most serious conviction other than murder. Young, 124 Ill. 2d 147, 529 N.E.2d 497, 124 Ill. Dec. 516.

In a more recent decision mentioning neither Neal nor Young, the supreme court construed section 5--8--2 to require the reduction of a defendant's extended-term sentence for aggravated criminal sexual assault to a non-extended term because the most serious of defendant's convictions was murder. People v. Henderson, 142 Ill. 2d 258, 568 N.E.2d 1234, 154 Ill. Dec. 785 (1990). As in Neal, the defendant in Henderson was sentenced to death, not a term of years.

While the majority recognizes that the supreme court's more recent decision in Henderson did not apply the rule in Young, the majority nonetheless continues to rely on Young as controlling. The majority lauds the reasoning in Young and simply remarks that the supreme court did not intend to overrule Young when it decided Henderson. I disagree.

Clearly, the decisions in Young and Henderson cannot be reconciled. Subsequent to its decision in Young, the supreme court again had the opportunity to construe section 5--8--2, and it chose not to follow its earlier rationale. While Henderson did not explicitly overrule Young, its rejection of Young's reasoning implicitly did so. See People v. Askew, 273 Ill. App. 3d 798, 652 N.E.2d 1041, 210 Ill. Dec. 65 (1995). The most recent guidance from the supreme court is that an extended-term may be imposed only for the most serious offense of which the defendant has been convicted, even when one of those offenses is murder. I therefore conclude that the imposition of extended-term sentences for each of the aggravated criminal sexual assaults was improper.

19970318

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