The opinion of the court was delivered by: Justice Bilandic
Defendant, Arlie Ray Davis, was charged in Henry County with five counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 1994)), two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2), (a)(4) (West 1994)), and one count each of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 1994)), kidnapping (720 ILCS 5/10-1(a)(1) (West 1994)), aggravated kidnapping (720 ILCS 5/10-2(a)(3) (West 1994)), robbery (720 ILCS 5/18-1(a) (West 1994)), and concealment of a homicidal death (720 ILCS 5/9-3.1(a) (West 1994)). These charges related to the August 1995 murder of Laurie Gwinn in Kewanee, Illinois. The jury returned verdicts of guilty against defendant on all counts, and the circuit court entered judgment thereon. At the first phase of a bifurcated capital sentencing hearing, the jury found defendant eligible for the death penalty on three grounds: (1) that the victim was murdered in the course of the commission of the felony of aggravated criminal sexual assault; (2) that the victim was murdered in the course of the commission of the felony of aggravated kidnapping; and (3) that the victim was murdered in the course of the commission of the felony of robbery. 720 ILCS 5/9-1(b)(6) (West 1994). Defendant waived his right to a jury for the second phase of the sentencing hearing. After considering evidence in aggravation and mitigation, the circuit court found no mitigating factors sufficient to preclude imposition of the death penalty and sentenced defendant to death. The circuit court also imposed prison sentences of 3 years for concealment of a homicidal death, 6 years for robbery, 20 years for aggravated criminal sexual assault, and 15 years for aggravated kidnapping, the latter two sentences to run consecutively. The circuit court vacated the remaining convictions as lesser-included offenses. Defendant filed a post-trial motion requesting a new trial and sentencing hearing, which the circuit court denied. Defendant's 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).
The State's evidence showed that, on Monday, August 21, 1995, Laurie Gwinn was reported missing after she failed to arrive at her job with the county health department. The next day, sometime after 11 a.m., Gwinn's dead body was found floating in the Hennepin Canal north of Annawan, Illinois. She was nude and was missing several pieces of expensive jewelry that she always wore.
Dr. Violette Hnilica, the forensic pathologist who performed the autopsy, testified that the body was decomposing and swollen. Hnilica used dental records to make a positive identification of the body as Gwinn. She also identified injuries to the body including torn skin on the right side of the mouth and cheek; "broken back" fingernails; bruises on the upper abdomen, shoulders, and right side of the head; hemorrhages and tissue compression in the neck; a blunt-force injury to the scalp; and bruises in the vagina. Hnilica stated that the cause of death was strangulation and blunt-force injuries, and that the victim's injuries were consistent with sexual assault.
A Kewanee police officer testified that Gwinn was his friend. At 10 p.m. on Sunday, August 20, 1995, the officer saw Gwinn at Graf's, a local tavern. The officer also saw defendant there.
Monica Grasty testified that she tended bar at Graf's from 5 p.m. on August 20, 1995, until 1:30 a.m. on August 21, 1995. At about 5:30 p.m., defendant entered Graf's with another man, James Linsley. Defendant had been in Graf's several times before and had introduced himself to Grasty as "Jim Smith." Gwinn entered Graf's around 7:30 or 8 p.m. Gwinn talked and played pool with defendant and Linsley for several hours. Later, Grasty saw defendant and Gwinn kiss. About 1:30 a.m., just before Grasty closed the tavern, she saw defendant, Gwinn, and Linsley leave together. When Grasty herself left the tavern directly after them, they were gone, but Gwinn's car was still in the parking lot. Gwinn's car was later recovered from the parking lot.
Junior Hanson testified that he lives in Kewanee and is a distant cousin of defendant. Early in August of 1995, defendant arrived at Hanson's home unannounced and asked to stay through the Labor Day weekend, when he planned to go to Texas. Defendant slept on Hanson's front porch for a few days. After that, Linsley joined defendant at Hanson's house, and they erected a tent in Hanson's yard. On August 20, Hanson arrived home around 10:30 p.m. and went to sleep. He heard nothing unusual during the night. At 6:45 a.m. on August 21, Hanson watched as defendant quickly loaded the tent into his car. Defendant told Hanson that he and Linsley would be renting a campsite at a nearby park. Defendant and Linsley left by 7 a.m. Hanson did not see defendant again until the trial.
Crecinda Harris lives across the street from Hanson. She identified defendant and Linsley as the two men who had been living in a tent in Hanson's yard in August of 1995. In the early hours of August 21, Harris was awake sewing bridesmaid dresses. Harris took a break and sat outside on her front steps at about 2 a.m. While sitting there, she heard a woman loudly cry out in a pleading voice, "No, not that. Oh, no, not that." Harris described the voice as coming from the tent in Hanson's yard. She heard nothing else. Fearful, Harris crawled back into her house and went to bed. She did not call police because she had no telephone.
At 6:30 a.m. that same morning, as Harris was leaving to drive her son to work, she saw defendant's car parked on Hanson's side terrace, where she had never seen it parked before. Harris returned home 15 minutes later and saw that defendant's car had been moved to the driveway, with its motor running. She observed defendant "hurriedly" break down his tent and place it in the car. Linsley was standing nearby. Harris went inside her house. She never saw defendant or Linsley at Hanson's house again.
Kevin Curran testified that he lives in Annawan. On August 21, he left for work at 7:05 a.m. Shortly after that, Curran saw a car with two white males inside pulling out of a gravel road in the Hennepin Canal area at a high rate of speed onto Route 78. The car did not stop as it approached Route 78, which Curran characterized as dangerous because the car could have been hit by oncoming traffic. Feeling that something was amiss, Curran followed the car and wrote down its license plate number, MMJ 296. This license plate number matched the Illinois plates on defendant's car. When Curran later heard that a dead body was found in the canal, he called police. In court, Curran identified defendant as the driver of the car and Linsley as the passenger. Alice Hanson, the daughter-in-law of Junior Hanson, also lives in Kewanee. She met defendant and Linsley through her relatives. Defendant stayed at her home once or twice, and Linsley slept there a few times. Before Gwinn's murder, defendant told Alice that he and Linsley had gone swimming in a canal near Annawan.
A vaginal swab taken during Gwinn's autopsy contained seminal material and sperm cells. Kristin Boster, a forensic scientist and expert in deoxyribonucleic acid (DNA) analysis, testified that she isolated the DNA taken from the swab and determined it to be too degraded for a restriction fragment length polymorphism (RFLP) analysis. Elizabeth Benzinger, a molecular biologist and also an expert in DNA analysis, agreed that there was insufficient DNA to perform an RFLP analysis. She explained that the DNA was degraded because the murderer had placed Gwinn's body in the canal. Benzinger therefore analyzed the DNA using the polymerase chain reaction (PCR) technique. She compared the DNA taken from the swab to samples taken from defendant, Linsley, and the victim. Benzinger concluded that Linsley could not have contributed to the vaginal swab. Benzinger could not, however, exclude defendant as the source of the semen on the swab. According to Benzinger, the percentage of the United States' population that could have contributed the DNA recovered from the swab was 2.6% of white persons and 3.6% of black persons.
A police officer for the City of Coffeyville, Kansas, testified that he pulled defendant and Linsley over on August 21, 1995. The officer took Linsley into custody on an outstanding warrant from the State of Washington, but did not detain defendant.
A police officer for the City of Tucson, Arizona, testified that he approached defendant for questioning at 1 a.m. on August 29, 1995. Tucson authorities then held defendant in custody after discovering that he was wanted on an Illinois warrant charging him with Gwinn's murder. James Linsley, defendant's cousin, testified for the prosecution. In August of 1995, Linsley was living at the Rescue Mission in Galesburg, Illinois, when defendant picked him up and drove him to Hanson's home in Kewanee. For the first few days, Linsley slept in defendant's car and defendant slept on Hanson's front porch. They then erected a tent in Hanson's yard. Linsley slept in the tent one night, but then slept at Hanson's son's house.
On August 20, at about 5 p.m., Linsley and defendant went to Graf's and played pool. Around 9 p.m., Laurie Gwinn, whom Linsley did not know, came into Graf's. Gwinn played pool with defendant and Linsley until 11 p.m. Gwinn and defendant sat together and talked from 11 p.m. until closing time. While at Graf's, Linsley drank a couple of beers which defendant purchased for him.
The bartender announced last call around 1:15 a.m., and Linsley walked out to defendant's car. Defendant and Gwinn then walked out to the car. Defendant told Gwinn that he would drive her home because she was too drunk to drive herself. Gwinn accepted. Once in the car, defendant told Gwinn that he would drop Linsley off at Hanson's house first.
They arrived at Hanson's house at about 1:45 a.m. Gwinn, defendant, and Linsley exited the car and walked toward the tent in Hanson's yard. Linsley noticed that Gwinn was wearing some expensive jewelry while at Graf's and when she exited defendant's car. Gwinn and defendant started arguing because Gwinn wanted to go home. Gwinn appeared frightened. Defendant then grabbed her arm, hit her in the face, and squeezed her throat with his hand while Gwinn gagged and coughed. With one hand still on Gwinn's throat, defendant grabbed her hair with his other hand and pulled her into the tent.
Linsley stated that he was "too scared" to help Gwinn. He just walked back to the car, parked about 15 feet away, and drank some beer. Defendant lit a candle in the tent, which allowed Linsley to see shadows of what was happening. Linsley saw the shadow of defendant as he removed Gwinn's pants. He saw defendant's shadow move up and down on top of Gwinn. Defendant appeared to be having sexual intercourse with Gwinn. Gwinn's body did not move. After a while, defendant stopped. He later started up again. Gwinn's body never moved. At some point Linsley had heard Gwinn cry out, "No, not that. Oh, no, not that."
A few hours later defendant exited the tent and drove his car to Hanson's side yard. Defendant carried Gwinn's clothed body from the tent and placed it in the car's front seat. Defendant told Linsley to get into the car's back seat, and Linsley complied. Defendant drove to the canal near Annawan, where he and Linsley had gone swimming the week before. They arrived at the canal around 6 a.m. Defendant removed Gwinn's body from the car, placed it on the cement boat dock, and removed Gwinn's clothing. Defendant and Linsley threw Gwinn's body in the canal and returned to Hanson's house. Defendant was laughing and smiling.
At Hanson's house, defendant directed Linsley to buy coffee. Linsley walked to a nearby convenience store, purchased two cups of coffee, and returned. Linsley overheard defendant tell Hanson that they were going camping. Defendant quickly broke down the tent and loaded it into the car. Defendant and Linsley then drove back to the canal area. There, defendant drove down a gravel road, but stopped when he noticed a car behind them. Defendant became angry, turned around, and sped out onto the highway.
Defendant stopped at some pawn shops in Davenport, Iowa. He then showed Linsley a wad of money. Defendant laughed and said, "Look, where did I get all this money?" The pair also stopped at rest areas, where defendant threw items into garbage cans.
That night police stopped them in Kansas. The police arrested Linsley on a felony charge pending against him in the State of Washington. Linsley gave his first statement to two officers on August 26, 1995. Linsley gave his second statement to the same officers the next day. Linsley acknowledged that in his first statement he omitted telling police that he saw defendant hit Gwinn and have sex with her.
In his testimony, Linsley acknowledged that he had mental problems, suffered from hallucinations, and had been committed to mental hospitals throughout his life. At times, he had difficulty remembering past events. Linsley also has epilepsy, for which he takes a prescription drug, which he should not mix with alcohol. He tends to get confused if he drinks alcohol while taking his medication.
Linsley further testified that he was in custody because he, like defendant, was charged with Gwinn's murder. His attorney had advised him of his fifth amendment right against self-incrimination and that anything he said in court could be used against him. Linsley still wanted to testify. Linsley stated that he had no agreement with the Henry County State's Attorney's office regarding the charges against him. Nor did Linsley expect anything in return for his testimony. The State's Attorney had offered to recommend a sentence of 20 years' imprisonment if Linsley pled guilty to murder. Linsley, however, had rejected that offer.
On cross-examination, Linsley explained that he was arrested in Kansas because he had a felony charge pending against him in Washington. The following colloquy occurred when defense counsel asked Linsley whether he had any expectation of leniency regarding the Washington charge:
"Q. In fact, you are hoping if you do good, you do well here, you will get-
Q. -the State's Attorney to help you out there?
A. No. I have to face those charges out there just as well as I do here."
Linsley's attorney later testified and confirmed that the Henry County State's Attorney's office had offered to recommend a prison sentence of 20 years for Linsley if he pled guilty to Gwinn's murder and testified against defendant. At the time this offer was made, Linsley had already given his statements to police. Linsley rejected the offer and testified against defendant without an agreement. The attorney further explained that the offer ...