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People v. Armstrong

March 19, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DONALD ARMSTRONG, APPELLANT.



The opinion of the court was delivered by: Justice Heiple

A jury found the defendant, Donald Armstrong, guilty of five counts of first degree murder, and one count each of armed robbery, residential burglary and burglary, in connection with the death of Marion Smigiel. The same jury found the defendant eligible for the death penalty and that no mitigating circumstances existed sufficient to preclude imposition of that sentence. The circuit court entered Judgement on the jury's finding and sentenced the defendant to death. *fn1 The defendant's sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). In this appeal, the defendant raises 25 issues challenging his conviction and death sentence. We affirm in all respects.

I.

At the time of her death, 86-year-old Marion Smigiel stood 5 feet 4 inches tall and weighed 123 pounds. She lived in an apartment building which she owned at 4301 West Haddon in Chicago. Stooped over and arthritic, Smigiel walked with a metal cane, but nonetheless managed to collect her tenants' trash, which she would carry to the garage each evening. On the morning of February 4, 1992, police found Smigiel's body lying in a pool of blood on the floor of her garage. Her skull had been smashed into several pieces leaving a gaping hole in her head measuring 5 inches by 2½ inches. Lying next to Smigiel's body was her metal cane-broken in two-along with several bags of trash.

Police found the door to Smigiel's apartment ajar, although there were no signs of forced entry. The bedroom had been ransacked: the mattress was upended, someone had gone through the dresser drawers, and a television set was missing. In the living room, a desk had been rifled through, although a social security check and $1,580 in cash were still in a desk drawer.

After speaking with tenants in the building, police began looking for Richard Makowski, another building tenant. Makowski was known to have had almost daily arguments with the victim and was suspected of stealing money from her in the past. Police found Makowski hiding on a third-floor landing in the building and took him to the police station for questioning. Makowski was released after the initial questioning, but was later arrested and charged with the murder of Marion Smigiel. *fn2

The crime went unsolved for several months. No identifiable fingerprints, other than the victim's, were found at the crime scene or at the apartment. Five months after the death of Marion Smigiel, police began looking for the defendant, Donald Armstrong, in connection with an unrelated incident. The defendant reportedly had gotten into some sort of an altercation with his cousin Lamark Odell and Lamark's father, Noba Odell. The Odells told police that they had some information regarding a homicide. The defendant was arrested in connection with the altercation with the Odells.

Lamark Odell told police that six months earlier, the defendant approached him on the street. The defendant asked him for money and explained that he had to leave town because he had killed an old lady in a garage near Division and Kostner after she refused to give him money. The defendant told Odell that he had gained $50 from the incident.

After speaking to the Odells, the police began to investigate the defendant's connection to the murder of Marion Smigiel. The defendant's brother, Ronald Armstrong, told police that he and the defendant knew Richard Makowski, and that the three of them had been drinking one evening in January in Makowski's apartment. Makowski told them how he had stolen money from his landlady, and that she always had money around the third of each month after collecting her tenants' rent. Ronald Armstrong told police that Makowski and the defendant then discussed robbing the old woman and decided to do so on February 3. Ronald Armstrong said that on February 3 the defendant came home with a television set, which he later sold for $50 to his older brother, Anthony Patrick. The defendant told Ronald Armstrong that he took the television set from the home of the woman he had killed. The defendant then, according to Ronald, left town.

The police then spoke with the defendant's brother Anthony Patrick. Patrick explained that he had bought a television set from the defendant for $50 on the night of February 3. The defendant initially told Patrick that he had taken the television from someone who owed him drug money. Later the defendant told Patrick that he had gotten the television set from a woman that he had killed. The defendant told Patrick that he had beaten the woman on the head with a cane because he thought she had some money. She was screaming as he hit her. Patrick told police how he had removed the serial number from the back of the television, and he gave them the television. At the station, the police located the serial number on the inside chassis of the television, which matched the serial number on a television carton found in Marion Smigiel's garage.

The police interviewed the defendant after advising him of his rights. The defendant stated that he understood his rights and agreed to speak to police about Smigiel's death. The police subsequently placed the defendant under arrest for the death of Marion Smigiel. After again being advised of his rights, including the right to remain silent and the right to counsel, the defendant chose to make a court-reported statement. The defendant stated that he and Makowski spoke in early January about robbing Makowski's landlady. Makowski explained that the lady was old and collected rents around the third of every month. At the end of January, the defendant and Makowski spoke again about robbing the defendant. Together, Makowski and the defendant concocted a scheme which called for the defendant to knock on the landlady's door and to pretend to be interested in renting an apartment. The defendant was then to push his way into her apartment and to let Makowski in the back door. The defendant and Makowski agreed to execute their plan on February 3.

The defendant stated that late in the afternoon on February 3, the defendant went to Makowski's building. He noticed Smigiel in the garage putting some garbage away; Makowski was standing on the back porch. The defendant entered the garage, shut the door and told Smigiel that he "was a dope fiend and wanted her money." Smigiel began to scream. Makowski yelled from the back porch, "Make that bitch be quiet." The defendant took Smigiel's cane from her and struck her with it. Smigiel continued to scream. Makowski yelled again, "Make that bitch be quiet before someone hear her." The defendant then hit Smigiel in the head with the cane several more times. The defendant could not recall how many times he struck Smigiel before the cane broke on the last blow and Smigiel fell to the ground.

The defendant then explained that he and Makowski entered Smigiel's apartment and searched for money. Not finding any, the defendant and Makowski took Smigiel's television. The defendant sold the television to one of his brothers for $50 and split the proceeds with Makowski.

After the court reporter transcribed the defendant's statement, he was given the opportunity to read it. He read the first page out loud and made changes to it. The defendant initialed the changes and signed the statement along with a police officer and two assistant State's Attorneys who were present. The defendant was subsequently charged by indictment with five counts of murder and one count each of armed robbery, residential burglary and burglary.

Prior to trial the defendant moved to quash his arrest for lack of probable cause and to suppress certain evidence, including his statement to police. The trial court denied the motions, finding that there was probable cause for the defendant's arrest and that the defendant's court-reported statement was freely and voluntarily given.

A jury subsequently found the defendant guilty on all charges and eligible for the death penalty. At the second stage of the sentencing hearing, the State introduced evidence of the defendant's criminal history, which included prior convictions for battery, aggravated battery, attempted robbery, robbery, armed robbery, and burglary, and an extensive disciplinary record while an inmate with the Illinois Department of Corrections. In mitigation, the defendant elicited testimony of his mother, among others, who stated that she and the defendant's father were alcoholics; that her son was a slow learner; and that she was a single mother who raised her 10 children while on public aid. According to the testimony of a social worker, the defendant's parents had a history of mental illness and alcoholism; the defendant had an extensive history of drug and alcohol abuse; and the defendant grew up in an unstable and sometimes violent home.

The jury unanimously found that there were no mitigating circumstances sufficient to preclude the imposition of the death penalty, whereupon the trial court sentenced the defendant to death. This direct appeal followed.

II.

The defendant raises 25 issues on appeal, challenging both his conviction and death sentence. We shall address each in turn.

The defendant first contends that (1) the trial court abused its discretion when it excluded a prospective juror for cause because the venire member indicated she was opposed to capital punishment. While a prospective juror cannot be removed for cause simply because he or she expresses a general objection to the death penalty (Witherspoon v. Illinois, 391 U.S. 510, 522, 20 L. Ed. 2d 776, 784-85, 88 S. Ct. 1770, 1777 (1968)), removal is proper where a juror's views would prevent or substantially impair the performance of his duties as a juror (People v. Cole, 172 Ill. 2d 85, 99 (1996)). Whether such is the case is a matter within the trial court's discretion. People v. Brown, 172 Ill. 2d 1, 33 (1996). During voir dire, the juror in question stated that her feelings about the death penalty would in fact affect her ability to find the defendant guilty:

"Court: *** ould you consider the death penalty, you said you would if you thought it was appropriate? Would you sign-Juror: That's hard for me.

Court: Well-

Juror: Because I'm a mother, I've had kids but to pass down a Judgement like that that's like playing God and-

Court: You said you believe in the death penalty, I mean, you have no feelings against the death penalty?

Juror: I'm sorry.

Court: That's all right. If appropriate, if the law and the facts call for it-we'll qualify it. If you found him guilty and if you decided he should receive the death penalty would you sign the verdict form?

Juror: That makes me want to turn and walk away. I'm sorry. I don't know. I don't know how to answer that.

Court: Are you telling me that you couldn't sign a death penalty in any case?

Juror: I don't know. I really don't know. I haven't played God on television. Let somebody else."

The standard for removal in this instance is whether a prospective juror's views on capital punishment would prevent or substantially impair the performance his or her duties as a juror. Cole, 172 Ill. 2d at 99; People v. Williams, 161 Ill. 2d 1, 54 (1994). It is clear that the juror in question expressed a profound reluctance to vote for a death sentence and she gave tentative, equivocal and even conflicting responses when asked her views on capital punishment. Accordingly, we conclude that the trial court did not abuse its discretion in excusing the juror.

Next the defendant contends that (2) the trial court abused its discretion in denying the defendant's motion for a continuance on the grounds of potentially prejudicial pretrial publicity. Two days before jury selection began, a Chicago newspaper reported that an 11-year-old boy had killed an elderly woman by beating her with a cane and then cutting her throat. In his motion, the defendant asserted that the similar nature of the crime described in the article and the charges against the defendant would encourage the jury to convict him in an attempt to halt a perceived "epidemic" of violence against elderly women. The granting of a continuance is within the trial court's discretion (People v. Williams, 173 Ill. 2d 48, 92 (1996)), and not all pretrial publicity necessarily leads to an unfair trial (Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554, 49 L. Ed. 2d 683, 695, 96 S. Ct. 2791, 2800 (1976); People v. Taylor, 101 Ill. 2d 377, 386 (1984)). The issue is whether the jury has the ability to lay aside its impressions and reach a verdict based on the evidence presented at trial. People v. Coleman, 168 Ill. 2d 509, 547 (1995). It strains credulity to assume that the jury here was prejudiced against the defendant by reports of an unrelated crime. Chicago is a big city; its newspapers regularly report on a variety of crimes. Thus, the trial court did not abuse its discretion in denying the defendant's motion.

Now the defendant argues for the first time that the trial court should have inquired during voir dire whether any of the jurors had read or heard about the similar crime. During voir dire, however, the defendant never requested that the trial court make such an inquiry, nor did he object to the trial court's failure to make such an inquiry. For an issue to be preserved on appeal, a contemporaneous objection must be made at trial and in a subsequent post-trial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). In failing to do so here, the defendant has waived this issue.

The defendant argues (3) that the trial court abused its discretion when it overruled the defendant's objection to the State's rebuttal closing argument that the defendant treated his victim like a baby seal, because this argument inflamed the passions of the jury. Prosecutors, however, are afforded wide latitude in closing argument, and even improper remarks do not merit reversal unless they result in substantial prejudice to the defendant. People v. Kitchen, 159 Ill. 2d 1, 38 (1994). Nevertheless, prosecutors may not engage in inflammatory arguments designed solely to arouse the passions of the jury. People v. Johnson, 119 Ill. 2d 119, 139 (1987). A trial court's determination regarding the propriety of closing arguments will not be disturbed absent an abuse of discretion. People v. Byron, 164 Ill. 2d 279, 295 (1995). In its closing argument, the defense asserted that the defendant did not have an intent to kill. The State responded in rebuttal:

"Prosecution: He didn't have to kill her. He chose to kill her, though.

When he was striking her with that cane, one can only imagine how loud her screams could have been for anybody to hear her. Because, Folks, I would submit to you that she's on that concrete floor long before that-long before that last blow was struck. He was treating her like she was a baby seal and this guy was competing for poacher of the year.

Defense: Objection, Judge.

Court: Overruled.

Prosecution: Intent to kill? You better believe it. Every time he struck that woman with that cane, his intent was quite clear. At the very least what he knew was, those acts he knew that he was killing her at the very least ...


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