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People v. Shaw

June 01, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
GREGORY SHAW, APPELLANT.



The opinion of the court was delivered by: Justice McMORROW

Agenda 1-May 1998.

Opinion filed October 22, 1998.

On October 5, 1994, defendant was charged in a six count indictment with armed robbery (720 ILCS 5/18-2(a) (West 1996)), felony murder (720 ILCS 5/9-1(a)(3) (West 1996)), first degree (knowing) murder (720 ILCS 5/9-1(a)(1) (West 1996)) and first degree (intentional) murder. 720 ILCS 5/9-1(a)(1) (West 1996). A jury found defendant guilty on all counts, pursuant to a theory of accountability. Defendant requested a jury for his capital sentencing hearing, and at the close of the first phase of the hearing, the jury unanimously found him eligible for capital punishment. 720 ILCS 5/9-1(b), (g) (West 1996). In the second phase of defendant's sentencing hearing, the jury determined that no mitigating factors existed that were sufficient to preclude imposition of capital punishment (720 ILCS 5/9-1(g) (West 1996)), and defendant was sentenced to death. 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). For the reasons which follow, we reverse defendant's convictions for armed robbery and felony murder, affirm his convictions for first degree (knowing) murder and first degree (intentional) murder; vacate defendant's death sentence; and remand this matter for resentencing.

BACKGROUND

A. The State's Theories

Defendant's convictions arise from the conduct of defendant and Elton Williams on September 28, 1994, culminating in the shooting death of Officer Timothy Simenson of the Crest Hill police department. At trial, the State developed the theory that defendant aided and abetted Williams in the armed robbery of William Chaney, even though defendant did not himself commit the robbery. The State introduced evidence to show that immediately following the robbery of Chaney, defendant acted as Williams' accomplice when Williams shot and murdered Simenson.

In a separate trial, a jury found Williams guilty of first degree (knowing) murder, first degree (intentional) murder and felony murder. He was sentenced to death for these crimes. On direct appeal to this court, we affirmed Williams' convictions and sentence. People v. Williams, 181 Ill. 2d 297, 306 (1998). The present appeal addresses only defendant's convictions and sentence.

B. The Evidence

Charles Pickens testified at trial that on the evening of September 27, 1994, Pickens and defendant drove together to defendant's mother's house in Pickens' automobile. En route to their destination, Pickens and defendant stopped at a liquor store. Pickens stated that defendant met Williams in the store. Defendant decided to leave the store with Williams and, as he left the liquor store at 6:30 or 7 p.m., Pickens saw defendant get into a small white car driven by Williams.

William Chaney testified that he arrived at his home, the Arbor Club apartment complex in Crest Hill, Illinois, shortly after midnight on September 28, 1994. As he parked his car in the parking lot, Chaney noticed a white car parked two spaces away from his own automobile. The engine of the white car was running. Chaney could not see inside the car.

When Chaney walked toward the entrance to his apartment building, he noticed Williams running toward him. Armed with an altered .22-caliber rifle, Williams ordered Chaney to surrender his wallet. Chaney tossed his wallet, which contained two $100 bills and Chaney's pay stub folded between the bills, to Williams.

Chaney then went directly into his apartment and called 911. It was 12:23 a.m. Chaney informed the Crest Hill police dispatcher of the robbery, provided a physical description of Williams, and the fact that a white car might be involved.

At the 911 operator's direction, Chaney returned to the parking lot and found a Crest Hill police officer, Tom Evanoff, in a squad car waiting for him. Evanoff and Chaney drove half a block to the intersection of Theodore and Burry Circle, located at the border of Crest Hill and Joliet, Illinois. Chaney recognized the white car he had earlier seen in the Arbor Club parking lot, now stopped at the intersection. Two Crest Hill police cars were parked directly behind the white car. Chaney estimated that 10 to 12 feet separated the white car and the first police car behind the white car. The headlights of both police cars were illuminated.

Evanoff parked his squad car parallel to the first police car. From his unobstructed vantage point, Chaney observed two police officers standing at the white car with a third man, whom Chaney identified as the defendant. Chaney told Evanoff that he was not sure that defendant was the man who had robbed him. As Evanoff began to leave the squad car, Chaney saw one of the officers remove keys from the white car and walk to the car's trunk. Chaney noticed too that, when the officer started to open the trunk, defendant bent over the hood of the police car parked immediately behind the white car. As the trunk deck rose, Chaney saw a gun barrel emerge from the trunk and fire two shots. The officer that opened the trunk fell backward, and a man standing in the trunk of the white car aimed a rifle at the second officer. Chaney heard "rapid and loud" gunfire, and he lay down in the back of Evanoff's squad car. After the shooting stopped, Chaney sat up and saw the second officer place handcuffs on defendant.

Chaney further testified that he did not see defendant during the robbery at the apartment complex, and that he never saw defendant in the white vehicle. Chaney never saw a weapon in defendant's hands.

Crest Hill police officers Ralph Smith and Evanoff also described the events of September 28, 1994. Smith testified that he was about 1½ miles from the intersection of Theodore and Burry when he heard the first dispatch about the robbery on his radio. The radio message, directed to Evanoff, stated that a robbery had occurred a few minutes earlier at Arbor Club complex. The robbery suspect was described as a black male in his mid-twenties, wearing a black jacket. The dispatcher also mentioned there was a white car in the area. Smith then heard a second radio communication, indicating that Evanoff would proceed to the apartment complex to interview the robbery victim, and that a third officer, Timothy Simenson, had seen and intended to stop a white Chevrolet Cavalier automobile at the intersection of Theodore and Burry.

Smith drove to Theodore and Burry, arriving there in approximately 1½ minutes. At the scene, Smith testified that he parked his car behind Simenson's car. Smith shone a spotlight located on his car toward a white Chevrolet Cavalier automobile parked in front of Simenson's car. Smith joined Simenson and the driver of the white car, later identified as defendant, as they stood at the driver's side of the white car. Simenson directed defendant to go to the back of the white car. Defendant walked to the back of the car and without being ordered by either officer to do so, sat on the trunk deck. In the meantime, Simenson examined the interior of the white car, turned off the car engine, and returned to the back of the white car with the car keys in his hand. Simenson said he intended to open the trunk and told defendant to get off the trunk of the automobile. Defendant slid off the trunk but stayed near the back of the white car. Simenson again told defendant to move away and go with Smith to Simenson's car.

Smith walked behind defendant to Simenson's car, where defendant placed his hands on the front of the car and bent forward at the waist. Neither Smith nor Simenson had told defendant to do this, and Smith said he found defendant's actions "unusual." Because Evanoff had recently arrived at the scene and parked near Simenson's car, Smith told defendant to stand up and face Evanoff's car. Smith knew, from radio communications, that Evanoff was bringing Chaney with him to the scene to determine if Chaney could identify defendant.

As Smith and defendant stood with their backs to the white car, Smith heard the trunk of the white car open, followed by a gunshot. Smith testified that as he turned around, he heard a second shot, and saw Simenson falling backward "like a tree." Smith tried to aim his own weapon, but had to step to the right to avoid putting Simenson in his line of fire. As he moved, Smith saw a "male black, 20's," get out of the trunk and level a gun at him. Smith fired his weapon several times until the assailant fell to the ground. Smith and Evanoff placed handcuffs on defendant and Williams and summoned ambulances.

Smith testified that after the shooting ceased, he turned to find defendant "spread-eagled" on the hood of Simenson's car. He did not know at what point defendant moved from a standing position to lying on the hood of the police car.

Defendant never told or indicated to Simenson or Smith that anyone was in the trunk of the white car.

Evanoff testified that at approximately midnight on September 28, Simenson and Evanoff were parked in their respective cars in a parking lot in Crest Hill. At 12:24 a.m., Evanoff received a dispatch regarding an armed robbery at the Arbor Club apartment complex. The radio dispatcher described a "male black, 25 years of age, wearing a black jacket." The communication also mentioned that a white vehicle "might be involved."

Simenson and Evanoff immediately drove in the direction of Arbor Club. The officers saw a white Chevrolet Cavalier automobile driving toward them, with an African-American male behind the wheel. Simenson made a U-turn and followed the white car. Evanoff continued on to Arbor Club.

After Evanoff arrived at the apartment complex, Simenson radioed Evanoff and asked for more descriptive information regarding the robbery suspect. Evanoff relayed Chaney's description to Simenson and then decided that he would bring Chaney to the intersection of Theodore and Burry. Evanoff estimated that he spent approximately five minutes at Arbor Club. He arrived at the intersection of Theodore and Burry at 12:31 a.m.

As he arrived at the scene, Evanoff could see Smith, defendant and Simenson standing at the rear of the white car. He watched defendant and Smith walk to the front of Simenson's car. Defendant put his hands on the front of Simenson's car and bent his body over the automobile. When defendant stood up, Chaney told Evanoff, "I think that's the guy but I am not positive." Evanoff saw Simenson walk to the rear of the white car, put the key in the trunk lock and slowly raise the trunk deck, looking down into the trunk as he raised the lid.

According to Evanoff, an African-American male came out of the trunk, pointed a gun at Simenson's head and fired. Simenson's head was about one foot from the end of the gun barrel. Simenson's head jerked back and Evanoff heard a second shot. Evanoff said Simenson fell backward like a tree. Williams then jumped out of the trunk with both hands on his gun and "pointed down towards *** Smith."

Evanoff got out of his car, drew his own weapon and positioned himself behind the open door of his car. Evanoff started shooting and saw Williams' body jerk and fall.

An evidence technician employed by the Joliet police department, Gary Baggett, testified that in the early morning hours of September 28, 1994, he recovered Williams' clothes at St. Joseph Medical Center. From the pocket of Williams' pants, Baggett recovered two $100 bills, with a pay stub belonging to William Chaney folded between them.

Joseph Sapala, M.D., is a forensic pathologist. On September 28, 1994, he performed an autopsy on the body of Simenson. Sapala testified that Simenson received two gunshot wounds to the face: one in the right jaw and one in the lip. Based on stippling patterns formed by gunpowder at the jaw wound, Sapala determined that the gun was approximately 18 inches from Simenson's head when fired. One of the bullets entering Simenson's head traveled from the right front to the back of his head; the other traveled downward to the right side of the neck. Sapala opined that "even with the best medical treatment," the bullet that entered Simenson's lip would have proven fatal. He estimated the bullet that entered the jaw also had "a high degree of proving fatal." With the combination of the two wounds, Simenson had no chance of surviving. Sapala further testified that "[Simenson] would have been dead before he hit the ground from those two wounds."

ANALYSIS

In his appeal, defendant alleges several errors that occurred before and during his trial, and during the post-trial sentencing hearing. We address these issues in their chronological order.

PRETRIAL

A. Whether the Circuit Court Abused its Discretion by Excusing a Prospective Juror for Cause

Defendant asserts that the circuit court abused its discretion by granting the State's motion to dismiss prospective juror Jacqueline DePolo for cause. Defendant maintains that the trial court improperly refused to clarify DePolo's opinions regarding capital punishment. The State responds that the circuit court correctly exercised its discretion in gauging whether a venireperson would fulfill her obligation to abide by the court's instructions and her oath as a juror.

We repeat below the relevant colloquy that occurred between the circuit court and DePolo during voir dire. The question and response that defendant believes required clarification are set forth in italics.

"COURT: Mrs. DePolo *** I have a number of questions to ask of you. Some of them are a little bit lengthy. Because of that, ma'am, they might be a little bit confusing."

"If you find yourself confused about a question, or unsure of it, please don't answer it. Ask me for some clarification or ask me to repeat it for you. *** Be sure that you don't answer a question that you are not positive about."

"All right, now as I indicated in the court room, if the defendant is found guilty of the crimes charged in this matter, the State will be seeking the death penalty in a separate sentencing proceeding."

"Do you have any scruples, by which I mean strong feelings by reason of religion, morals or conscience against the infliction of the death penalty?"

"MRS. DEPOLO: No."

"COURT: Are your beliefs such that regardless of the facts of the case or the background of the defendant, that under no circumstances could you consider signing a verdict directing the Court to sentence defendant to death?"

"MRS. DEPOLO: No."

"COURT: Would your beliefs about the death penalty prevent or substantially impair your ability to reach a fair and impartial decision as to whether the defendant was guilty?"

"MRS. DEPOLO: No."

"COURT: Do you have any strong feelings or beliefs in favor of the death penalty?"

"MRS. DEPOLO: No."

"COURT: Are your beliefs such that regardless of the facts of the case or the background of the defendant, that if the defendant were found guilty as charged, you would automatically vote to impose the death penalty and would not consider signing a verdict which would result in a sentence of imprisonment?"

"MRS. DEPOLO: I'm sorry but could you repeat that?"

"COURT: No problem. Are your beliefs such that regardless of the facts of the case or the background of the defendant, that if the defendant were found guilty as charged here, you would automatically vote to impose the death penalty and would not consider signing a verdict which would result in a sentence of imprisonment?"

"MRS. DEPOLO: No."

"COURT: Are your beliefs such that regardless of the facts of the case or the background of the defendant, that if the defendant were found guilty as charged, you would automatically vote against the death penalty?"

"MRS. DEPOLO: Yes."

"COURT: Would your views on the death penalty prevent or substantially impair the performance of your duties as a juror in accordance with the Court's instructions as to the law and your oath as a juror?"

"MRS. DEPOLO: No." (Emphasis added.)

Following a conference between counsel and the court, the court excused DePolo for cause and defense counsel objected:

"DEFENSE COUNSEL: Could the record reflect the objection by the Defense to the challenge for cause, please?"

"COURT: Yes, sir."

"DEFENSE COUNSEL: And that's based on the fact that there was no attempt to rehabilitate the prospective juror with respect to the one question-the response to one question that was raised as the State's reason for challenging for cause."

"COURT: All right. Yes, the record may reflect that, and the basis for the Court's ruling was it was apparent to the court she obviously understood the question. She did not pause in any way. She said that she would automatically sign a death-excuse me. That she would refuse to sign a death penalty verdict. I guess I should say she would automatically vote against the death penalty. That is the language of the question."

"I was clear with her with regards to whether or not she understood questions, to ask for clarification or repetition. In fact, she did that on other questions. I don't see that there was any sort of equivocation whatsoever."

"So the motion for challenge for cause was allowed."

A trial court may not exclude a prospective juror for cause because the juror voices general religious or conscientious reservations about capital punishment. People v. Rissley, 165 Ill. 2d 364, 401 (1995); People v. Tenner, 157 Ill. 2d 341, 362 (1993); People v. Seuffer, 144 Ill. 2d 482, 505 (1991). Removal for cause may occur only if "the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Wainwright v. Witt, 469 U.S. 412, 424, 83 L. Ed. 2d 841, 851-52, 105 S. Ct. 844, 852 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589, 100 S. Ct. 2521, 2526 (1980); Seuffer, 144 Ill. 2d at 505. There is no "set catechism" the circuit court must recite, nor does this court demand that the potential juror answer questions with meticulous precision before the trial court may rule on a motion to exclude for cause. People v. Szabo, 94 Ill. 2d 327, 354 (1983), citing People v. Gaines, 88 Ill. 2d 342, 356 (1981); Tenner, 157 Ill. 2d at 362-63. Rather, the responses of the venireperson must be viewed in their entirety. Tenner, 157 Ill. 2d at 363; Szabo, 94 Ill. 2d at 354. "The determination whether to allow a challenge for cause lies within the sound discretion of the circuit court [citation] and will not be disturbed absent an abuse of that discretion." People v. Taylor, 166 Ill. 2d 414, 421-22 (1995).

All of the factors we are obliged to apply to defendant's argument compel a finding that the court did not abuse its discretion in excusing DePolo. DePolo's answers were unequivocal. She did not voice generalized qualms concerning capital punishment that would have required further questioning (see Szabo, 94 Ill. 2d 327), but answered affirmatively the court's direct question of whether her beliefs would impair her ability to fulfill her obligations as a juror. Moreover, the record indicates that the court considered DePolo's response in its full context. The circuit court observed that DePolo appeared to understand the question and answered it without hesitation. Additionally, because DePolo had asked for clarification of a prior question, the fact she did not seek further clarification on the question at issue could lead the court to conclude that she understood all other questions put to her.

Admittedly, and as the State concedes, DePolo gave contradictory responses. In one instance, she indicated that circumstances existed where she would consider voting in favor of sentencing defendant to death. Later, she stated that, regardless of the evidence in this case, she would automatically vote against the death penalty.

Nevertheless, it is precisely in situations such as this, where the cold record suggests an apparent contradiction, that we defer to the circuit court's discretion. People v. Holman, 132 Ill. 2d 128, 148-49 (1989).

"It is axiomatic that a great deal of deference must be given to the circuit court, which is in a superior position to determine not only from a venireperson's responses as a whole but also from a venireperson's demeanor whether that person's views toward capital punishment would substantially prevent or impair the venireperson's performance of his or her duties as a juror in accord with the oath a juror is required to take." Taylor, 166 Ill. 2d at 424.

Here, the circuit court watched and heard DePolo as she answered the court's questions. The court specifically referenced DePolo's demeanor in justifying its decision to remove her for cause. This court cannot, on the record before it, substitute its speculations about DePolo's demeanor in place of the lower court's personal observations. Therefore, we find that the circuit court did not abuse its discretion.

TRIAL

Defendant asserts that the circuit court made four erroneous rulings at trial. We proceed first to defendant's challenge to rulings relating to defendant's felony murder conviction and then to the alleged errors relevant to defendant's convictions for knowing and intentional murder.

A. Felony Murder

1. Whether the Circuit Court Erroneously Responded to a Question From the Jury ...


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