Appeal from the Circuit Court of Winnebago County. No. 87--CF--32
Honorable Gerald F. Grubb, Judge, Presiding.
JUSTICE COLWELL delivered the opinion of the court:
Following a February 1997 trial, a jury found defendant, David Crane, guilty of murder. It had been alleged that defendant "beat and burned" the victim, Robert Gahan, knowing that such acts created a strong probability of Gahan's death. See Ill. Rev. Stat. 1987, ch. 38, par. 9--1(a)(2) (now 720 ILCS 5/9--1(a)(2) (West 1996)). Defendant appeals his conviction, contending (a) that the State failed to prove him guilty beyond a reasonable doubt, (b) that the State should have been barred from presenting certain evidence at trial, (c) that double jeopardy prohibited the State from pursuing a death-by-burning theory, (d) that the prosecutor made several improper and prejudicial remarks during closing argument, and (e) that the jury was improperly instructed. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 21, 1986, Gahan's charred remains were discovered near some railroad tracks in Winnebago County. Defendant was charged in February 1987 with Gahan's murder. Since then, defendant has been tried and convicted of the charge three times. The first jury trial began in August 1987. The State presented evidence that Gahan had been beaten in the head but had died as a result of being burned. However, our supreme court upheld the appellate court's decision to reverse defendant's conviction and remand. People v. Crane, 145 Ill. 2d 520, 523 (1991). The court held that, since there was some evidence that defendant set Gahan's body on fire under the mistaken belief that Gahan was dead, defendant was entitled to a mistake-of-fact instruction. Crane, 145 Ill. 2d at 526-28.
In February 1994, a grand jury returned a five-count "Superseding Bill of Indictment" against defendant, charging him with murder. Each of the five counts alleged that defendant "beat and burned" Gahan without lawful justification. Count I alleged that defendant intended to kill Gahan; count II alleged that defendant intended to do great bodily harm to Gahan; count III alleged that defendant knew his acts created a strong probability of causing Gahan's death; count IV alleged that defendant knew his acts created a strong probability of great bodily harm to Gahan; and count V alleged that defendant killed Gahan while committing a forcible felony, robbery. The trial court dismissed count V on February 25, 1994.
The second trial was held in March 1994. The jury convicted defendant of murder under count III (strong probability of death). However, we reversed the conviction on the basis that the trial court erroneously denied defendant's request for an aggravated battery instruction. People v. Crane (Crane II), No. 2--94--0692 (1996) (unpublished order under Supreme Court Rule 23). Again, a new trial was ordered.
Early in 1997, the State voluntarily dismissed with prejudice counts I, II, and IV of the superseding indictment. Defendant therefore went to trial under count III only.
The third trial began in February 1997. David Swanson, a deputy coroner, testified for the State. He observed Gahan's remains on April 21, 1986, and stated that 98% of Gahan's body was burned and that 60-70% of it was reduced to ashes. Following a police investigation, defendant was identified as a prime suspect.
In January 1987, Detectives Roger Costello and Larry Schultz traveled to Las Cruces, New Mexico, to interview defendant, who was being held on a traffic charge. Detective Schultz testified as to what defendant told them during that interview. Carrying a pair of "nunchucks" in his pants, defendant was hitchhiking on the night of April 20, 1986. Gahan, a 300-pound homosexual, picked defendant up and drove to a location near Roscoe, Illinois, where he and defendant smoked marijuana. As defendant stood in front of Gahan's car, Gahan approached him from behind and started to choke him. Defendant grabbed his nunchucks and struck Gahan on the head with them until Gahan fell to the ground. Defendant ran a short distance, turned around, and walked back to where Gahan lay. Defendant told the detectives that, at that point, he thought Gahan was dead. The detectives did not ask defendant if he checked Gahan's vital signs, nor did defendant tell them that he did. Defendant stated that he then drove Gahan's car to the home of a friend named Brian Carlson, who suggested burning the body. He and Carlson took a can of gasoline from Carlson's garage and drove to where the body lay. After pouring gasoline on it, defendant ignited Gahan's body. Defendant admitting taking Gahan's wallet, which contained $60-70.
Carlson testified that defendant came to his house early in the morning on April 21, 1986. Defendant, whose pants were stained with blood, explained that he had been in a fight. Defendant changed into a pair of Carlson's pants and borrowed Carlson's gas can, which defendant said was for a campfire in Roscoe. In his van, Carlson followed defendant, who was driving Gahan's car, to an unknown location. There, defendant wiped Gahan's car clean of fingerprints, abandoned the vehicle, and entered Carlson's car. Carlson dropped defendant off at some railroad tracks at the "Roscoe trestle area" and observed a large fire soon thereafter. Early in 1987, defendant called Carlson and asked him not to testify.
The State called Barry Young, who said he was a friend of defendant's. Young testified that on April 15, 1986, defendant asked him if he wanted to "go roll queers" with him. Young laughed off defendant's suggestion. Sometime prior to April 22, 1986, defendant asked Young questions about how much gasoline it would take to burn a body. On April 22, 1986, Young saw defendant and asked about a newspaper report of a man being burned to death. When asked if he was the perpetrator, defendant "denied it *** and laughed at it."
Dr. Larry Blum, a forensic pathologist, also testified for the State. Dr. Blum performed an autopsy on April 22, 1986, and found several lacerations on Gahan's skull resulting from blunt force trauma. He also found "small pinpoint hemorrages [sic]" in Gahan's trachea, caused when Gahan inhaled hot gasses from the fire. Dr. Blum thus believed that Gahan was alive when defendant set him on fire. According to Dr. Blum, although the blows to Gahan's head could have caused a concussion, they were not severe enough to have caused Gahan's death. Rather, in Dr. Blum's opinion, the burning caused Gahan's death. Dr. Blum opined that the intense heat from the fire caused neurologic shock, which in turn caused Gahan's bodily functions to shut down.
Defendant called several witnesses in support of his theory, which was twofold: first, he claimed to have struck Gahan with the nunchucks in self-defense, and second, he claimed to have burned Gahan's body under the belief that Gahan was dead. Brian Carlson's wife, Robin, testified that she noticed discolored markings on defendant's neck between April 22 and April 24, 1986.
Defendant also testified. His version of events closely resembled the one that he told to the detectives in 1987, except that he added the following details. He stated that he carried the nunchucks with him for protection and that he hit Gahan only in self-defense after Gahan grabbed defendant's crotch and neck. After initially running away and returning to where Gahan lay, defendant observed no breathing or movement of any kind. He testified that he checked Gahan's vital signs by placing his hand over Gahan's mouth and by checking Gahan's pulse. As Gahan showed no signs of life, defendant concluded he was dead. Defendant then dragged Gahan's body into the passenger seat of Gahan's car and drove toward Carlson's house. Planning to place the body in the trunk of the car, he stopped at the Roscoe trestle area but was unable to lift the body into the trunk. Defendant therefore left Gahan's body next to the railroad tracks and drove to Carlson's house. Although defendant wanted to bury the body, Carlson suggested burning it. Carlson retrieved a gas can from his garage, and the two eventually proceeded to the Roscoe trestle area in Carlson's van. Defendant exited Carlson's van, walked to Gahan's body, and took Gahan's wallet. He then doused and burned the body. After that, defendant was unable to find Carlson, who was supposed to have been waiting for defendant at the trestle.
Defendant left Rockford in July 1986 and headed south. He went to several states, including Florida, Texas, and Arizona, until he was arrested in New Mexico following a high-speed chase. Regarding the statement he gave to the detectives in 1987, defendant claimed that the detectives specifically asked him if he had checked Gahan's vital signs and that he had answered yes. Defendant also claimed to have no prejudice toward homosexuals. On cross-examination, defendant stated that each time he struck Gahan with the nunchucks he intended only to inflict "plain bodily harm" on the victim.
The State called Detective Costello and Lance Waters in rebuttal. Detective Costello denied ever asking defendant if he checked Gahan's vital signs. Waters, a friend of defendant's, stated that defendant called him on April 21, 1986, and asked to meet with him. Defendant told Waters about many of the facts surrounding Gahan's death. For instance, defendant told Waters that he killed Gahan in self-defense and that he burned the body believing Gahan to be dead. However, defendant never said that he checked to see if Gahan was breathing.
The jury deliberated for approximately five hours before finding defendant guilty of murder. The trial court denied all of defendant's posttrial motions and sentenced him to a 40-year term of imprisonment. Defendant's motion to reconsider sentence was denied, and this timely appeal followed.
A. WHETHER THE STATE PROVED DEFENDANT GUILTY BEYOND A REASONABLE DOUBT
We now turn to defendant's contention that the State failed to prove him guilty of murder beyond a reasonable doubt. Defendant maintains first that the State introduced insufficient evidence that he acted with knowledge that his acts of beating Gahan created a strong probability of death. He also claims that the evidence was insufficient to support a finding that the beating caused Gahan's death. Defendant stresses (a) his own testimony in which he specifically stated that he did not know hitting someone on the head with nunchucks could cause a scalp laceration, break open the skin, or create a strong probability of death and (b) Dr. Blum's testimony that Gahan did not die from the beating. Citing People v. Bavas, 251 Ill. ...