The opinion of the court was delivered by: Chief Justice Freeman
Following a jury trial in the circuit court of Fulton County, defendant, Donald Bull, was convicted of the first degree murder of Donna Tompkins and her daughter, Justine, the concealment of their homicidal deaths, and the aggravated arson of their home. See 720 ILCS 5/9-1(a), 9-3.1(a), 20-1.1(a)(1) (West 1992). Defendant chose to have the trial Judge determine his sentence. At a separate sentencing hearing, the trial Judge found defendant to be eligible for the death penalty and further determined that there were no mitigating circumstances sufficient to preclude the imposition of that sentence.
Accordingly, the trial Judge sentenced defendant to death on the murder convictions, to a consecutive five-year prison term on the homicidal death convictions, and to a 30-year prison term on the aggravated arson conviction, consecutive to the death penalty and concurrent with the other prison term. The death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). We affirm.
The State's evidence at trial was essentially as follows. The victim, 30-year-old Donna Tompkins, worked at the Canton National Bank. Beginning in the spring of 1992, she also worked part-time as a waitress at the Canton Elks Club. In October 1992, she rented an apartment at 367 S. First Avenue in Canton for herself and for the other victim in this case, her three-year-old daughter, Justine.
A co-worker of Donna's at the Elks Club, Iona Price, introduced Donna to defendant. He worked with Price's husband, Mike, delivering furniture. Donna told defendant that she wanted to buy a sofa bed for her new apartment, and defendant responded that he had one to sell. Later that evening, Price warned Donna not to allow defendant into her apartment if she were ever there alone.
Defendant soon thereafter sold Donna a used sofa bed. She arranged for defendant to deliver the sofa while she and Justine were not at home. In her mailbox, she left for defendant a check for the sofa bed and the key to her apartment.
At 9 a.m., on January 13, 1993, Donna had not yet arrived at the bank. A co-worker, Sheila Sisk, reported Donna's absence to her supervisor, David Haynes. He telephoned Donna's apartment and received her answering machine. A short time later, Sisk again telephoned Haynes and this time reported that Justine was not at her day care center. Sisk suggested that Haynes go to Donna's apartment and check on her.
At approximately 9:15 a.m., Haynes left the bank and drove a few blocks to Donna's apartment. He parked behind Donna's car in the garage driveway. He knocked on her apartment door and did not hear an answer. He attempted to look into the apartment through windows next to the door, but could not see anything. Haynes went to the adjoining apartment to speak with the owner of the building, Pauline Newcomb. She did not know if the victims were still at home. Haynes telephoned the bank from Newcomb's apartment; Donna was not there. Haynes then telephoned the Canton police department for assistance.
While on the phone, Haynes heard knocks on the wall or floor. After hanging up, he noticed a faint puff of smoke emanating from the adjoining wall. Haynes instructed Newcomb to leave her apartment. Haynes ran to Donna's door; he still could not open it. He ran to a window and pulled out from the window an air conditioner. Smoke, under pressure, billowed out from the opening. Haynes ran back to the apartment door, broke a window in the door, reached inside and opened the door. He could see only smoke and a bright orange glow. Haynes ran to the rear of the building, broke out windows, and called out to the victims. Reaching inside for the victims, Haynes felt only furniture. A police officer arrived, who called for the fire department. Firefighters soon arrived and extinguished the fire. The fire had been intentionally set, and had been fast, intense, and extremely hot. Firefighters discovered the charred remains of the victims. They were found on the metal framework of the sofa bed, the bed extending from the sofa. Donna lay rigidly face-up on what had been the mattress; her legs hung over the edge of the mattress frame. Justine lay curled on her side next to her mother.
The victims and the sofa bed had been saturated with kerosene, gasoline, and whiskey. A trail of the accelerants had been poured to a pool formed by the door. The prosecution pathologist opined that the victims probably had been strangled or smothered to death prior to the fire. Also, Donna had drunk alcohol prior to her death, but the evidence conflicted as to when.
On the night before the fire, defendant was living approximately 10 blocks from the victim's home, at the home of his new girlfriend, Rochelle Hillemeyer. Also present were David Nell and several others. They played cards and drank beer. At approximately 2 a.m., defendant borrowed Hillemeyer's car to drive Nell home. Hillemeyer went to bed. When she awoke at around 7 a.m., defendant had not yet returned. Instead of driving Nell directly to his home, defendant drove around Canton drinking beer for approximately 30 minutes. Defendant twice drove past Donna's apartment. Each time defendant drove past, he pointed to the victims' apartment and told Nell that "he would like to f-k her," referring to Donna. According to Nell, "he [defendant] said that about all girls though."
Hillemeyer's mother, Jacqueline Day, drove to Hillemeyer's home on the morning of the fire to take one of her children to school. While Day was out doing errands, she noticed Hillemeyer's car parked within a block of the victims' apartment. Day stopped and exited her car, and inspected Hillemeyer's car. Day did not see a flat tire, or anything else wrong with the car. Day returned to Hillemeyer's home at around 8:30 a.m. Defendant had not yet returned.
At around 9:45 a.m., defendant returned with Hillemeyer's car. Defendant told Hillemeyer that he had a flat tire and had injured his leg while attempting to change the tire. Defendant further told Hillemeyer that he had entered the car and slept. However, upon inspection, Hillemeyer did not see any injury to defendant's leg. Defendant also mentioned that he had bloodstains on his coat as a result of his injury. When Hillemeyer told defendant that she had not seen any cuts on him, he responded that the stain was probably transmission fluid. He washed his coat in their washing machine.
Defendant went to sleep. He stayed home from work even though he was scheduled to work that day. When he awoke, defendant took Hillemeyer's car to a garage and had all four tires replaced. Sometime during the next several months, defendant told Hillemeyer that "if the police ever want to search my things, you don't have to let them."
On January 27, 1993, police investigators learned that Donna had bought the sofa bed from defendant. On that date, defendant repeated to the police what he told to Hillemeyer on the morning of the fire. On March 21, 1993, Jo Ann Wright overheard defendant talking in a bar. He said that "he could kill somebody and get by with it and not get caught."
Intact sperm was recovered from Donna's remains. Investigators requested blood samples from Donna's estranged husband, Jon Tompkins; her then-current boyfriend, Rod Franciskovich; a prior boyfriend, Terry Haynes; David Haynes; and defendant. The first four voluntarily complied. Defendant refused until around March 24, 1993, when he was arrested in a different case. In that case, the State obtained a search warrant for samples of defendant's blood, hair, and clothing fibers.
The Illinois State Police Forensic Science Laboratory determined that, of the five men, only defendant's DNA matched that of the sperm recov-ered from Donna's remains. Indeed, according to the prosecution DNA expert, the chance of the DNA recovered from Donna matching anyone other than defendant was at least one in 210 million.
On March 29, 1993, police investigators obtained Hillemeyer's consent to search defendant's possessions. Officers found a closed box in the bedroom that defendant had shared with Hillemeyer. In the box, officers found several rings. Witnesses identified one of these rings as belonging to Donna; further, she never took it off.
On July 15, 1993, defendant told Harold Crosier that he had sex with Donna a few days prior to her death. Defendant and Crosier were watching a television program that discussed DNA. Defendant also told Crosier that blood could not have been found in Donna's apartment because it would have been incinerated. Defendant also expressed concern over a ring that he had left at Hillemeyer's home.
In a letter to Mike Price dated July 17, 1993, defendant stated that he had sex with Donna on the Saturday or Sunday prior to her death. He further wrote: "that was my second time with her and my last." In March 1994, defendant confessed to Chris Chester that he had murdered the victims. Defendant told Chester the following. Defendant had a relationship with Donna. On the night of her murder, he had been drinking. He took her apartment key from her mailbox and woke her between midnight and 1 a.m. Donna told defendant that it was over between them, that it was a bad idea, and that all he wanted was money and sex. Donna slapped defendant. The next thing defendant remembered was waking up on top of her. When he came to, his hands were on Donna's face, leaning on her; she was dead. Defendant heard Justine in the next room, and did "the same thing" to her. Defendant then left Donna's apartment and walked to Hillemeyer's car, parked around the corner near a junkyard. A short time later, defendant returned to the apartment and wiped his fingerprints. He set the apartment on fire because he forgot something.
On June 30, 1994, defendant was charged in a 10-count indictment with seven counts of first degree murder, i.e., the intentional, knowing, and felony murder of Donna and Justine (720 ILCS 5/9-1(a)(1) through (a)(3) (West 1992)); two counts of concealment of homicidal death (720 ILCS 5/9-3.1(a) (West 1992)); and one count of aggravated arson (720 ILCS 5/20-1.1(a)(1) (West 1992)). Defendant was tried on all counts. The defense case was essentially that the State failed to prove defendant guilty of the charged offenses beyond a reasonable doubt. The defense presented evidence that the victims were not strangled or smothered, as charged in most of the murder counts, but rather died from inhaling the superheated gases that the fire produced. The defense presented evidence that criticized the State's DNA testing method, and showed that defendant's DNA did not match that found in the semen recovered from Donna's remains. The defense, inter alia, attacked the adequacy and fairness of the police investigation, the credibility of Crosier and Chester, and the identification of Donna's ring. The defense argued that there was no evidence that Donna had been sexually assaulted, as charged in the felony murder count. The defense also argued that the true murderer was David Haynes.
At the close of the evidence, the jury returned general verdicts of guilty for the crimes charged.
Defendant waived a sentencing jury. The trial Judge found the presence of a statutory aggravating factor: defendant had been convicted of murdering two or more individuals. See 720 ILCS 5/9-1(b)(3) (West 1992). Thus, the trial Judge concluded that defendant was eligible for the death penalty.
At the second stage of the capital sentencing hearing, the State presented evidence that included the following. In 1983, defendant was charged with strangling Donna Rupe, his former sister-in-law, nearly to the point of death. He repeated this several times until she eventually escaped. Defendant was convicted of aggravated battery and sentenced to a five-year prison term.
Defendant was charged with strangling Valerie Hilton, an acquaintance. On March 23, 1993, after a few drinks in a bar, defendant asked Hilton for a ride home. En route, he directed her to a park. Once there, defendant explained that he wanted to have sex with Hilton. She refused and started to drive away. Defendant turned off the car and strangled Hilton until she passed out. When she regained consciousness, she was face down in the back seat of her car. Hilton told defendant that she would not go to the police if he drove her home. Defendant drove her home, and she telephoned her brother. Hilton's brother took her to the police and then to a hospital. While defendant was incarcerated for that offense, he was charged in this case. Defendant was ultimately convicted of aggravated battery. Two other women testified about their encounters with defendant, which did not result in criminal charges.
Defendant's mitigation evidence included the following. Defendant's IQ was low average; it ranked at the bottom 2% of the population. There were clear indications of brain dysfunction possibly resulting from a motorcycle accident. He has a language-based learning disability, thinks slowly, and is mentally impaired. Defendant abused alcohol and drugs. Also, defendant loved his mother, whose death in 1990 had devastated him. Defendant was not close to his father, who had often called defendant stupid or dumb. Defendant had always tried to obtain his father's attention and to please him. However, defendant's father was an excessive drinker; he also was a gambler, and a womanizer; and he left the family when defendant was 15 years old. Defendant had married Rupe's sister and had two children. They divorced after defendant attacked Rupe.
At the close of the sentencing hearing, the trial Judge concluded that there were no mitigating circumstances sufficient to preclude the imposition of the death penalty:
"THE COURT: Will the defendant please rise? Mr. Bull, I have reviewed the factors in aggravation and mitigation in this case. I find, essentially, that [the State's] characterization is the correct one. There are no statutory factors in mitigation. In aggravation, you have caused the death of two people and you have a criminal record. The other factors in mitigation that were brought forth concerning your background and concerning your academic problems, concerning the problems you had growing up in your family, do not rise to the level of mitigation in the Court's view. In fact they don't even help understand, or anyone understand, what you have done here.
You snuck into this young women's [sic] apartment, at night, and you raped her. And you strangled her to death. And if you would have stopped there I think life without parole would have been an acceptable sentence, but you didn't stop there. You heard that little girl and you strangled her and then you set them on fire to cover your tracks. But you didn't cover your tracks because this isn't a totally circumstantial case. You left your little deposit, your DNA, in that young women [sic]. And despite your efforts to cover that up, you have been unsuccessful. Like I said, if would [sic] you have stopped with Donna Tompkins I think life without parole would have been acceptable, but you didn't. You heard Justine; who couldn't hurt you. Who couldn't identify you. Couldn't have testified against you, and you killed her, and for that, Donald Bull, I sentence you to death."
As stated earlier, the trial Judge also sentenced defendant to prison terms on the other convictions. Also, defendant's prison sentences in this case were consecutive to the prison sentence he was then serving for his attack on Hilton.
Defendant appeals. Additional pertinent facts will be discussed in the context of the issues raised on appeal.
Defendant contends: (1) the search of his closed box in Hillemeyer's bedroom was unreasonable; (2) the questioning of a juror in his absence denied him several constitutional rights; and (3) the evidence was insufficient to prove him guilty beyond a reasonable doubt. Defendant also contends that he was denied a fair trial because the trial court: (4) barred defense cross-examination of the prosecution DNA expert regarding his disciplinary record with the state police crime laboratory, and (5) admitted an out-of-court statement of Iona Price during her testimony and portions of the testimony of Jon Tompkins. Defendant contends (6) he did not receive a fair sentencing hearing at the death eligibility phase because findings were not made as to the mental states required for death penalty eligibility. Defendant contends (7) the trial court erred by denying his several pro se post-trial motions without an evidentiary hearing. Defendant also contends (8) that the Illinois death penalty statute is unconstitutional because the death penalty will inevitably be applied to innocent persons, and the statute precludes meaningful consideration of mitigating circumstances.
Defendant first contends that the trial court erred in denying his motion to suppress as evidence the ring identified as belonging to Donna. Defendant claims that the search of his closed box in Hillemeyer's bedroom was unreasonable and, consequently, he must receive a new trial.
The hearing on the motion to suppress elicited the following uncontested facts. In January 1993, defendant moved his belongings into Hillemeyer's home. He lived with her and shared her bedroom until his arrest on March 23, 1993, regarding the Hilton attack. Included with defendant's possessions was a cardboard box, which had been a container for a bottle of liqueur. Defendant used the box as a "collection box," or a "piggy bank"; he "threw odds and ends in it." Sometimes he kept the box in a dresser; sometimes he kept the box beside the dresser. Defendant had never permitted Hillemeyer to look in the box; she had never asked to do so.
On March 29, 1993, defendant was in the local jail. Illinois State Police Agent Kenneth Kedzior and Canton Police Sergeant David Ayers went to Hillemeyer's home and asked if they could search her home. She consented and signed a printed consent form. The officials asked Hillemeyer specifically whether there was any area of the premises to which she did not have access; she answered in the negative. In the bedroom, the officials discovered the closed box on the floor beside a dresser. Hillemeyer stated that the box and its contents belonged to defendant. The officials asked her if she had access to the box, and she answered that she did. The officials also asked Hillemeyer if she knew what was in the box, and she answered that she did not. The police opened the box. It contained coins, a key, a ring with a black setting, and a ring with a clear setting. Hillemeyer told the officials that defendant previously had shown her the ring with the black setting. She had not previously seen the key or the ring with the clear setting. Witnesses subsequently identified the ring with the clear setting as belonging to Donna. At the close of the hearing, the trial court denied defendant's motion to suppress.
Defendant contends that the search of his box violated the United States and Illinois Constitutions. See U.S. Const., amends. IV, XIV; Ill. Const. 1970, art. I, §6. We note that this court, as a general rule, in interpreting the search and seizure provision in the Illinois Constitution, looks to the United States Supreme Court's interpretation of the fourth amendment. See People v. Mitchell, 165 Ill. 2d 211, 217-23 (1995); cf. People v. Krueger, 175 Ill. 2d 60, 74 (1996) ("We knowingly depart from that tradition [of applying the lockstep doctrine] here for the reasons set forth below"). Also, a reviewing court generally will not disturb a trial court's determination of a motion to suppress evidence unless it is manifestly erroneous. However, in this case, the parties do not question the facts or the credibility of the witnesses. Thus, de novo review is appropriate. See People v. Foskey, 136 Ill. 2d 66, 76 (1990).
The fourth amendment prohibits the warrantless search of a person's home as per se unreasonable. However, there are a few specifically established and well-delineated exceptions to the warrant requirement. One such exception is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858, 93 S. Ct. 2041, 2043-44 (1973).
This consent may be obtained not only from the individual whose property is searched, but also from a third party who possesses common authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 181, 111 L. Ed. 2d 148, 156, 110 S. Ct. 2793, 2797 (1990). A court should not infer common authority from the mere property interest a third person has in the property. The authority that justifies third-party consent is not based on the law of property. Rather, such authority is based on mutual use of the property by persons generally having joint access or control for most purposes. Therefore, it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in his or her own right, and that the others have assumed the risk that one of their number might permit the common area to be searched. United States v. Matlock, 415 U.S. 164, 171 n.7, 39 L. Ed. 2d 242, 250 n.7, 94 S. Ct. 988, 993 n.7 (1974), adopted in People v. Stacey, 58 Ill. 2d 83 (1974). The burden of establishing common authority rests on the government. Rodriguez, 497 U.S. at 181, 111 L. Ed. 2d at 156, 110 S. Ct. at 2797. Defendant does not challenge the voluntariness of Hillemeyer's consent, but rather challenges its scope. Defendant argues that Hillemeyer could legally consent only to a search of her own property, and not to a search of his closed container. "A homeowner's consent to a search of the home may not be effective consent to a search of a closed object inside the home." United States v. Karo, 468 U.S. 705, 725, 82 L. Ed. 2d 530, 548, 104 S. Ct. 3296, 3308 (1984) (O'Connor, J., Concurring, joined by Rehnquist, J.); accord United States v. Rodriguez, 888 F.2d 519, 523 (7th Cir. 1989); People v. Gonzalez, 88 N.Y.2d 289, 294 n.1, 667 N.E.2d 323, 325 n.1, 644 N.Y.S.2d 673, 675 n.1 (1996) (collecting cases). When a homeowner permits entry into her home of a guest's private container to which the owner does not have the right of access, the homeowner effectively surrenders a segment of the privacy of her home to the privacy of the container's owner. Such a homeowner lacks the power to give effective consent to the search of the closed container. Karo, 468 U.S. at 726, 82 L. Ed. 2d at 548-49, 104 S. Ct. at 3309 (O'Connor, J., Concurring, joined by Rehnquist, J.).
In this case, when police officials found defendant's box, they questioned Hillemeyer specifically as to her common authority over the box, separate from her common authority over the premises. Defendant counters that police officials should have known that Hillemeyer's consent was inadequate. However, a warrantless search based on the consent of a person having apparent, though not actual, authority to give such consent is lawful if, at the time of the search, the police reasonably believe that person to have common authority over the place or item to be searched. Rodriguez, 497 U.S. at 186-89, 111 L. Ed. 2d at 160-61, 110 S. Ct. at 2800-01.
In this case, Hillemeyer stated that she was familiar with and had access to the box. The mere fact that defendant alone may have used the box does not indicate that Hillemeyer was denied the mutual use, access to, or control over it. See Stacey, 58 Ill. 2d at 89-90; People v. Ford, 83 Ill. App. 3d 57, 63 (1980); 3 W. LaFave, Search & Seizure §8.3(f), at 740 n.92 (3d ed. 1996). Based on these uncontested facts, we hold that police officials could reasonably believe that Hillemeyer had common authority over the box. We agree with ...