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04/17/97 PEOPLE STATE ILLINOIS v. LATASHA PULLIAM

April 17, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
LATASHA PULLIAM, APPELLANT.



Chief Justice Heiple delivered the opinion of the court. Justice Harrison, dissenting.

The opinion of the court was delivered by: Heiple

CHIEF JUSTICE HEIPLE delivered the opinion of the court:

Defendant, Latasha Pulliam, was indicted on 131 counts of murder, aggravated criminal sexual assault, aggravated kidnapping, and aggravated unlawful restraint. She and her codefendant, Dwight Jordan, were tried simultaneously by separate juries in the circuit court of Cook County. Defendant's jury convicted her of first degree murder, two counts of aggravated criminal sexual assault, and two counts of aggravated kidnapping. The jury determined that there were no mitigating factors sufficient to preclude imposition of the death penalty. The trial court sentenced defendant to death for first degree murder. Additionally, the court sentenced defendant to three consecutive prison terms of 60 and 30 years for aggravated criminal sexual assault and 15 years for aggravated kidnapping. Defendant's 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).

On appeal to this court, defendant argues that the trial court erred in (1) admitting hearsay; (2) admitting evidence of a book found in defendant's apartment; (3) allowing testimony concerning a court-ordered fitness examination at both trial and sentencing; (4) allowing various items of evidence in aggravation; (5) preventing a defense witness from testifying; (6) allowing the State to make improper arguments at sentencing; (7) refusing to respond to a question from the jury; and (8) imposing an excessive sentence. Defendant also argues that the death penalty is unconstitutional for a number of reasons. We affirm defendant's convictions and sentences.

FACTS

On March 21, 1991, defendant was arrested for the murder of six-year-old Shenosha Richards (hereinafter Shenosha). The next day, defendant spoke to law enforcement officers and signed a court-reported confession. On appeal, defendant does not challenge the admissibility of this confession. In the confession, defendant related the following account of the murder.

On March 21, defendant was outside on the street when Shenosha asked to come to her house. Defendant took Shenosha to her third-floor apartment. Upon entering the apartment, she took Shenosha to her bedroom, where Dwight Jordan, her boyfriend and codefendant, was sitting on the bed. She told Shenosha to sit down and watch television. Defendant then went to the kitchen to use cocaine, and remained there for half an hour. When she returned to the bedroom, Shenosha was on the floor crying, with her underwear down to her knees. Jordan was behind her on the floor, fondling his penis in an attempt to achieve an erection. Upon failing to do so, he picked up a white shoe polish bottle and inserted it into Shenosha's rectum. Shenosha continued crying and asked Jordan to stop, saying that she would not tell anyone.

Defendant further confessed that Jordan then told her to get a hammer. After retrieving the hammer, defendant put saliva on it and inserted the straight end into Shenosha's vagina. As defendant did this, Jordan continued inserting the shoe polish bottle in and out of Shenosha's rectum. Defendant and Jordan continued this activity for 10 minutes. When they stopped, Shenosha was crying. Defendant put her hand over Shenosha's mouth, and Shenosha tried to scream. Defendant then took an electrical cord from a television, wrapped it around Shenosha's neck, and "started to strangle her."

Defendant stated that she then took Shenosha to an empty apartment down the hall, with the electrical cord still wrapped around her neck. Defendant said that as they entered this apartment, Shenosha fell onto a board with a nail protruding from it. Defendant took Shenosha to the kitchen of the apartment where she started a fire "to scare her." After defendant put the fire out, Shenosha said that she would not tell anyone, except that she would have to tell her parents. At that point, defendant pulled the cord tighter around Shenosha's neck and continued tightening it for 10 minutes. Then, because she heard knocking on the door of her apartment down the hall, she put Shenosha in a closet in the empty apartment and threw Shenosha's shoes out the window.

Defendant said that she looked in the closet a few minutes later and saw that Shenosha was not breathing. Defendant then took the hammer that she had used earlier and hit Shenosha on the head three or four times. Defendant then placed Shenosha in a garbage can, hit her on the head with a two-by-four, and tried to cover her up with garbage.

Defendant said that she gave this statement willingly, fully aware of her constitutional rights to remain silent and have the assistance of counsel. Investigators who searched the crime scene recovered Shenosha's shoes, a hammer, a white shoe polish bottle, and a triangular piece of wood with a protruding nail.

At trial, the medical examiner who performed the autopsy on the victim testified that Shenosha suffered 42 distinct injuries. She sustained two puncture wounds to her chest which damaged her lungs and coronary artery. The examiner testified that these wounds were consistent with being struck by a board with a nail. Shenosha had six lacerations on her head, three of which penetrated through to the skull. These injuries were consistent with being hit with a hammer, or a board such as a two-by-four. She had injuries under her chin which were consistent with ligature strangulation. She sustained lacerations to the skin of her anus which were consistent with a traumatic penetration or sexual assault. Injuries caused by the penetration were at least eight inches deep, consistent with the handle of the hammer or the shoe-polish bottle. She also had lacerations alongside her clitoris and on the lower surface of her vagina extending to her anus which were consistent with penetration of the hammer or the shoe-polish bottle.

In its case in chief, the defense called a psychologist who had examined defendant in 1994. He testified that defendant has an IQ of 69 and that he believed her to be mildly mentally retarded. He further testified that a person with defendant's degree of mental retardation would be easily influenced by others, would not anticipate the consequences of her actions, and would have difficulty predicting the outcome of a situation.

In rebuttal, the State called a psychologist who had examined defendant in 1991. He testified that he did not believe defendant was mentally retarded. He also testified that defendant had malingered, or faked mental illness, during his examination of her, and further opined that she likely did so during the 1994 examination as well.

The jury found defendant guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 1992)), two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 1992)), and two counts of aggravated kidnapping (720 ILCS 5/10-2(a)(3) (West 1992)). The jury then found defendant eligible for the death sentence on two grounds: (1) that she committed the murder in the course of other felonies, namely, aggravated criminal sexual assault and aggravated kidnapping (720 ILCS 5/9-1(b)(6) (West 1992)); and (2) that the victim was under the age of 12 and her death resulted from exceptionally brutal and heinous behavior indicative of wanton cruelty (720 ILCS 5/9-1(b)(7) (West 1992)).

At the second stage of the sentencing hearing, the State offered evidence in aggravation. An employee of the Department of Children and Family Services testified that defendant frequently had been placed in state facilities as a youth, but had often run away. The employee testified that on one occasion, defendant ran away with another girl who was under state care, and that while the two were gone, defendant physically forced the girl to submit to oral, anal, and vaginal sex performed by one of defendant's former boyfriends. The employee testified that the girl was also forced to perform oral sex on both defendant and her former boyfriend.

The State presented evidence that defendant's daughter was twice hospitalized, once for injuries consistent with physical abuse, and once for both physical and sexual abuse. The State also offered evidence that defendant, while incarcerated awaiting trial, sexually assaulted an inmate. Finally, in order to show defendant's lack of remorse, the State presented evidence that defendant described to another inmate in great detail her sexual assault and murder of Shenosha.

In mitigation, defendant offered evidence that her parents and other adults physically and sexually abused her as a child. The evidence indicated that defendant gave birth to a child when she was 15 and to another when she was 17, and that the fathers of these children were two separate boyfriends of defendant's mother. Defendant also offered evidence that her codefendant, Jordan, physically abused her. A second defense psychologist testified that defendant is mildly mentally retarded, with a long history of alcohol and drug abuse.

The jury found no mitigating factors sufficient to preclude imposition of the death sentence. The trial court sentenced defendant to death.

ANALYSIS

Trial

Hearsay

Defendant contends that the trial court erred in allowing testimony concerning certain statements made by various persons about the crime because the statements were hearsay. An out-of-court statement is hearsay only if it is offered to establish the truth of the matter asserted. People v. Simms, 143 Ill. 2d 154, 173, 157 Ill. Dec. 483, 572 N.E.2d 947 (1991).

Defendant's first hearsay argument concerns the testimony of the police officer who apprehended her. This officer testified that during his pursuit of defendant, numerous bystanders shouted such things as "There she goes, right there, she's running." The officer also testified that after he apprehended defendant, members of the crowd said such things as "They got her, there she is right there, they got her in the car."

A police officer may testify about statements made by others, such as victims or witnesses, when such testimony is not offered to prove the truth of the matter asserted, but is instead used to show the investigative steps taken by the officer leading to the defendant's arrest. Simms, 143 Ill. 2d at 174. We hold that the statements made by bystanders at the crime scene were not inadmissible hearsay because they were not offered to prove what they asserted, i.e., that defendant fled and that she was taken into police ...


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