The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Frank DeBoni, Judge Presiding
A jury convicted defendant, Dennis Jackson, of armed robbery (720 ILCS 5/18-2 (West 1994)), first degree murder (720 ILCS 5/9-1 (West 1994)) and felony murder (720 ILCS 5/9-1(a)(3) (West 1994)) in connection with the stabbing death of the victim, Kenneth Posey. Although defendant was found eligible for the death penalty, the court sentenced defendant to a term of natural life imprisonment for the first degree murder, with a concurrent term of 30 years' imprisonment for the armed robbery. Defendant appeals, arguing the trial court erred by: (1) failing to properly instruct the jury; (2) admitting evidence of the deceased's peaceful character; (3) admitting testimony implying that defendant had prior arrests; (4) admitting evidence of uncharged crimes; and (5) imposing an unlawful sentence. We affirm.
Tena Ware, the victim's sister, testified that on October 29, 1994, at 9:30 a.m., she entered Posey's house and found him lying motionless in the hallway with a knife sticking out of his leg. She also noticed his Chevy Lumina was missing and immediately called the police.
Detective Luis Disotaur testified that he arrived at the crime scene at approximately 11 a.m. on October 29, 1994. Disotaur testified that he saw blood on the kitchen floor and a trail of blood leading to Posey's body lying in the hallway. He observed a brown wallet on the kitchen floor with its contents strewn about.
Detective Disotaur further testified that on December 20, 1994, the Cook County crime lab informed him that six fingerprints lifted from the crime scene matched defendant's fingerprints. On January 11, 1995, he met defendant at his home in Riverdale. Disotaur determined that defendant was about 5 feet 8 inches and 180 pounds. Disotaur told defendant he was investigating the murder of Kenneth Posey. Defendant agreed to go to the Riverdale police station. At the Riverdale police station, Disotaur read defendant his Miranda rights and defendant told him that at approximately 3 p.m. on October 28, 1994, he was walking near North Avenue and Austin Boulevard. Posey drove up, offered him a ride and defendant got in the car. They drove to a liquor store and then they drove to Posey's house in Bellwood. Posey then loaned defendant the car so that he could drive back to the southern suburbs. Defendant stated he did not kill Posey.
Disotaur testified that after defendant's statement, he brought defendant to the Bellwood police station and again advised him of his Miranda rights. Defendant again told Disotaur that Posey had picked him up near North Avenue and Austin Boulevard. Defendant said he did not know Posey prior to accepting the ride with him, but that he suspected Posey was gay. Defendant told Disotaur that he "didn't like gay people *** they just disgusted him." Defendant stated he accepted the ride with Posey because he thought he "could get something" from him.
They stopped at a liquor store, where Posey bought liquor, and then they drove to Posey's house in Bellwood. Three or four men were already at the house; defendant believed they were all gay because they kept referring to a predominantly gay bar in Forest Park. As defendant drank with the men in the basement of the house, they asked him if he wanted to go to the bar. Defendant declined, telling them he had a long way to go home.
Posey and the other men walked upstairs, leaving defendant alone in the basement. Defendant became angry because he thought Posey was "trying to be slick to get rid of the other guys" so he could have "some type of a sexual moment" with defendant. Posey returned to the basement and told defendant he had something to show him upstairs. Defendant followed Posey upstairs and noted that the other men were gone. The phone rang and Posey talked for a minute on the phone, hung up, then placed another call. Defendant heard Posey make plans to meet the person on the other end of the line later. Posey then hung up the phone and stepped into the hallway.
Defendant walked toward Posey, who was standing in the hallway outside his bedroom. When defendant approached, Posey reached out and touched defendant on the pants in the area of his penis. Defendant told Posey "not to do that." Posey then tried to kiss defendant on the mouth. Defendant became angry, cursed Posey, and punched Posey in the face three times.
Defendant then started to walk back towards the kitchen. Posey came up behind him and "got his hands around [defendant's] neck." Defendant broke free, grabbed a butcher knife from the kitchen counter, turned around and stabbed Posey in the chest. As defendant stabbed him, Posey said "Why are you doing me this way?"
Defendant pulled the knife out of Posey's chest, after which Posey fell facedown in the hallway. Defendant was angry and wanted to make sure that Posey would not move, so he stabbed Posey in the left thigh. He removed the watch, bracelet, and ring from Posey's body, then looked through Posey's wallet, which contained no money.Defendant took Posey's car keys and stole Posey's car. Before leaving, he grabbed Posey by the legs and dragged him farther into the house "so he wouldn't be seen." Defendant then drove to Ford Heights, where he sold the bracelet, ring, and wrist watch.
Following defendant's statement, Detective Disotaur met with Assistant State's Attorney Andrea Grogan, who testified that at approximately 8:40 p.m. on January 11, 1995, defendant made a written statement substantially similar to the oral statement recited above. Grogan further testified that defendant never claimed he was in fear of being killed or suffering bodily harm as the result of Kenneth Posey's conduct. Also, defendant indicated that Kenneth Posey never had any weapons in his hands and never hurt defendant during this incident. Defendant stated he rented Kenneth's car to four men for $75 and sold Kenneth's watch, ring and bracelet for $50 within two to three hours after leaving Kenneth's home.
Bernard Estes testified that on October 29, 1994, at midnight or 1 a.m., he was with friends Barry Watson and Clarence Brown in Ford Heights. He observed a white Chevy Lumina park near him, and defendant and another individual exited the vehicle. Defendant told Estes his name was "Kenny" or "Kenneth" and asked Estes and his friend if they wanted to rent the car for a few hours. Barry Watson agreed to rent the car and paid defendant $50. Defendant further stated that he wanted to sell a bracelet and ring. Estes bought both items for $50. Estes also noticed that the insurance card in the glove compartment of the Chevy Lumina contained the name "Kenneth."
Barry Watson testified that when he was with his friends Clarence Brown and Bernard Estes on October 29, 1994, he rented a Chevy Lumina from defendant. Watson paid defendant $50 for the car. The next day Watson was arrested while he was in the Chevy Lumina and taken to the Bellwood police station.
Doctor Adrienne Segovia testified that on October 30, 1994, she performed the autopsy on Posey's body. Her examination revealed that Posey was a 6-foot-2-inch male who weighed 161 pounds. Posey had a single horizontal stab wound to the chest, two additional stab wounds on the left thigh, and a defensive cut on the right hand. In Doctor Segovia's opinion, Posey died from multiple stab wounds, and post-mortem tests on Posey's blood, urine and bile showed alcohol levels from .24 to .28.
The jury convicted defendant of murder, felony murder, and armed robbery. The trial court sentenced defendant to a term of natural life imprisonment for murder with a concurrent term of 30 years' imprisonment for the armed robbery conviction. Defendant filed this appeal.
First, we address whether defendant's murder convictions must be reversed due to the trial court's failure to properly instruct the jury. The trial court instructed the jury on self-defense in that defendant was justified in the use of deadly force if he reasonably believed such force was necessary to prevent imminent death or great bodily harm. Defendant, however, argues the trial court erred by refusing to give the additional instruction on the justifiable use of deadly force to prevent the forcible felony of criminal sexual assault.
That instruction is based on section 7-1 of the Criminal Code of 1961 (the Code) (720 ILCS 5/7-1 (West 1994)), which provides that a person is justified in the use of deadly force only if he reasonably believes such force is necessary to prevent the commission of a forcible felony. The definition of "forcible felony" includes criminal sexual assault. 720 ILCS 5/2-8 (West 1994). Criminal sexual assault is defined as "an act of sexual penetration by the use of force or threat of force." 720 ILCS 5/12-13(a)(1) (West 1994).
Section 7-1 of the Criminal Code also provides that a person is justified in using deadly force "only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another." 720 ILCS 5/7-1 (West 1996). The jury received the following instruction based on that section of the Code:
"A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself ...