The opinion of the court was delivered by: Justice Freeman
Docket No. 88208-Agenda 1-November 2001.
Following a jury trial in the circuit court of Kane County, defendant, Edward Tenney, was convicted of the first degree murder of Virginia Johannessen. See 720 ILCS 5/9-1(a) (West 1992). At a separate sentencing hearing, the same jury found defendant eligible for the death penalty and further determined that there were no mitigating circumstances sufficient to preclude imposition of that sentence. Accordingly, the trial court sentenced defendant to death. That sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). We reverse defendant's conviction and remand for a new trial.
Defendant was indicted on six counts of first degree murder. Three counts of the indictment charged defendant with the January 2, 1993, murder of Johannessen, and three counts charged defendant with the October 1, 1993, murder of Mary Oberweis. A jury determined that defendant was fit to stand trial for the two murders. Defendant was tried separately for each murder. Prior to his trial for the Johannessen murder, defendant was convicted of the Oberweis murder. Regarding the Johannessen murder, defendant was tried on one count of knowing murder and one count of felony murder based on residential burglary. See 720 ILCS 5/9-1(a)(2), (a)(3) (West 1992). The State entered a nolle prosequi on the remaining count.
Johannessen (hereafter victim) lived at 1301 Felton Road in Aurora. In January 1993, the victim, 74 years old, lived at that address alone and had resided there for approximately 40 years.
The victim's brother, Francis Reines, saw her every few weeks. On January 5, 1993, Reines had a telephone conversation with their sister Regina regarding the victim. That conversation, coupled with the fact that Reines had not been able to contact the victim, prompted him to drive to the victim's house and check on her.
Reines arrived at the victim's house at approximately 10:30 a.m. He unlocked the back door with his key and disarmed the electronic burglar alarm. The alarm system included motion detectors. However, according to the victim's daughter, Barbara Johannessen-Bailey, the victim was able to disarm the motion detector in the basement without deactivating the entire system. According to Reines, the victim's house had been burglarized twice prior to her murder. He did not believe that anyone was present during these prior burglaries. He did not remember whether anyone was ever apprehended for them.
Walking through the house, Reines saw the victim sitting in a chair in a corner of the living room. She appeared injured; her head was tilted back, looking up. He immediately telephoned 911.
At 10:51 a.m., Officer Thomas Blincoe of the Kane County sheriff's department was dispatched to the victim's residence to assist an ambulance in a possible death investigation. When he arrived, the ambulance was already at the scene. Reines and the ambulance crew directed Officer Blincoe to the victim, whom the paramedics had pronounced dead. Blincoe saw the victim sprawled in a chair with a large bloodstain on the right side of her head.
Officer Blincoe did not find any type of weapon near the victim. He observed that the house was very cluttered with stacks and piles of books, magazines, and other items throughout the entire house, including the basement. These things were arranged somewhat orderly; there were pathways to negotiate through the house.
Checking the exterior of the house, Officer Blincoe saw that a basement window was broken. The window frame was ripped out and lying on the ground. A two-day-old newspaper was in the mailbox. Blincoe and Reines saw that the victim's garage was empty. Blincoe reported the victim's car as stolen.
At 11:28 a.m., evidence technician Kevin Hogle of the Kane County sheriff's department arrived at the crime scene. He photographed the exterior and interior of the victim's house. He found broken glass from the basement window both outside the house and in the basement. On a table next to the victim were several items including a check that was filled out and dated January 2, 1993. In the bedroom was a chest that appeared to have been pried open. He recovered fingerprints inside of the house, but did not find any fingerprints on the broken glass of the basement window or the area surrounding the window. Subsequent laboratory testing did not reveal any fingerprints on the window frame. On the basement floor below the broken window, Hogle saw only dust. He did not remember seeing mud, grass, or any other material from the outside. Hogle believed that the point of entry was the broken basement window.
The victim's daughters, Barbara Johannessen-Bailey and Karen Johannessen, examined the house shortly after the murder. Barbara noted that some of the victim's jewelry was missing.
At approximately 2:30 p.m., Captain Michael Anderson of the Kane County sheriff's department found the victim's car, a 1984 blue Oldsmobile Delta 88, in the parking lot of an Eagle Food Store approximately one mile from the victim's home. A store employee saw the car on January 3, 1993, at 4 a.m. when he arrived for work. The car was towed to the sheriff's department. An evidence technician found in the car a "hatchet/hammer" (hereafter hammer). It did not have any fingerprints.
On May 2, 1995, Donald Lippert, defendant's alleged accomplice, spoke with Captain Anderson. At defendant's trial, Donald was called to testify for the State. Donald understood that in exchange for his truthful testimony, he would receive a prison term totaling 80 years for crimes committed in Kane and Du Page Counties, with the possibility that the trial court might sentence him as guilty but mentally ill. Defendant requested a competency hearing, which was held outside of the presence of the jury. At the close of the hearing, the trial court found that Donald was competent to testify.
Donald testified that Leslie Lippert was his father and that defendant was his cousin. After identifying defendant, Donald further testified as follows. He "vaguely" remembered the events of January 1993. He remembered living at 759 Austin Avenue in Aurora with his father, defendant, and his brother Michael. He remembered committing a burglary at a small white house on Felton Street. When shown photographs of the victim's house, Donald testified that it could have been the house that he burglarized.
On the night in question, Donald and "Chris Nelson," whom Donald knew as defendant, walked to the small white house to burglarize it. Donald believed that defendant had chosen the house. Defendant was armed with a .22-caliber handgun. Donald had never been in that house before or after that date.
Defendant broke a window and pulled the window frame out of the structure. At defendant's direction, Donald entered the house by crawling through the window. Donald, intoxicated from alcohol and drugs, crawled out because he was frightened by the dark and the noise of a washing machine. Donald told defendant that he was not reentering the house and told defendant to do it. Defendant instructed Donald to go to the front of the house and stand guard. Donald then believed that no one was at home.
Donald went to the front of the house and looked in the window. Donald saw defendant approach an old lady facing a table; defendant was pointing a gun at the back of her head. Donald heard a gunshot. He ran back to the broken window, entered the basement, and went into the living room. The woman had been shot in the back of the head, her chin resting on her chest. Donald told defendant that the woman apparently was still alive. Defendant picked up a hammer, tilted the woman's head back, and hit her on the forehead.
Defendant told Donald to look for "jewelry, money, anything valuable." Donald took jewelry from the bedroom and put it into a pillowcase. After they looked through the house, they exited through the broken window. They went to the victim's garage, where they found her car. Defendant gave Donald a car key and they entered the car. Donald drove to the Eagle Food Store and parked in the lot. They walked to the Lippert home and hid the stolen property in the yard. They moved the items later that night or the next day. At trial, Donald acknowledged that the woman was the victim, and that he never received permission from anyone to enter the victim's house. Donald did not know what became of the hammer.
Donald identified several pieces of the victim's property as those that he stole. He testified that the hammer found in the victim's car resembled the hammer with which defendant hit the victim. However, Donald also stated that he had seen the hammer around his house after the crime.
Cross-examination revealed that on the night in question, Donald, who is diabetic, was taking insulin in addition to alcohol and drugs. He did not remember many details regarding the broken window and the basement interior. However, he did remember that the window was small and difficult to pass through and that he had to climb over a "[b]unch of garbage" near the window.
Michael Lippert also testified for the State. According to Michael, he and defendant had a conversation in January 1993 in which defendant made the following inculpatory remarks. Defendant had seen "an old lady living in this white house off of Sheffer Road." A few days later, he and Donald went to the victim's house. Donald entered through the basement window and let defendant in through the back door. "Then [defendant] shot her in the back of the head with a .22 caliber handgun." Defendant also told Michael: "They [defendant and Donald] took jewelry, any valuable old stuff, and they took the car, her car, to the Eagle's parking lot, parked it there and brought all the stuff back to the house. That was it."
When Lieutenant Peter Burgert of the Kane County sheriff's department first questioned Michael in August 1994, Michael denied knowledge of defendant's involvement in this crime. Michael did so because defendant had threatened his life. However, in May 1995, Michael went to Captains Anderson and Robert Cannon and related defendant's inculpatory remarks. Referring to his knowledge of the murder, Michael testified that "it was on my chest for too many years and I wanted to get it off my chest." He also felt sympathy for the victim's family. Michael additionally testified that he was a former member of a street gang and, at the time of defendant's inculpatory remarks, he smoked marijuana "a lot" and took cocaine occasionally. However, Michael was not under the influence of any drug during his conversation with defendant.
Dr. Shaku Teas performed an autopsy on the victim. Dr. Teas determined that the victim had been dead between 24 and 72 hours. The cause of death was a gunshot wound to the back of the head. Dr. Teas removed two fragments of a small-caliber bullet. The victim also had a crescent-shaped wound to the forehead. According to Dr. Teas, it was unlikely that the forehead wound was an attempted exit wound. Rather, the forehead wound was consistent with being struck with a hammer, including the hammer recovered from the victim's car. However, Dr. Teas could not identify that particular hammer as the cause of the forehead wound.
Subsequent laboratory testing revealed that the two fragments removed from the victim's head were from a .22-caliber bullet. However, the fragments were in such poor condition that it was impossible to connect them to a specific gun.
Leslie Lippert testified for the State as follows. In January 1993, he lived at 759 Austin Avenue in Aurora. Lippert's house was 630 feet from where the victim's car was found. Leslie lived with his sons, Michael and Donald, and with defendant, who is his nephew.
In the spring of 1993, they moved out of their house on Austin Avenue. Prior to moving, Leslie rented space at a storage facility in St. Charles. Michael, Donald, and defendant each put their own items in boxes and other containers. According to Leslie, each labeled his boxes with his name; however, some of the boxes did not have any identification marks. Also, most of the containers were not sealed. Leslie loaded the items onto his pickup truck, drove to the storage facility, and placed the items in two storage lockers. Only Leslie had access to these stored items.
On May 8, 1995, Leslie Lippert went to the Kane County sheriff's department and met with Captains Anderson and Cannon. He feared being charged with possession of stolen property. The officers arranged a meeting with the State's Attorney. The next day, Leslie returned to the sheriff's office. He, Cannon, and Anderson went to the State's Attorney's office, where Leslie obtained assurances that he would be held harmless for any stolen items that may have been in storage.
Leslie then took the officers to the West Chicago house where he then lived with his son Michael and others. Leslie gave the officers a box containing items that he received from defendant at their prior home in Aurora. The items included several forms of false identification with the name Christopher Nelson. According to Leslie, defendant sometimes used that name.
Leslie took the officers to the storage facility. Accompanying them were several additional officers in another car and a pickup truck. Leslie unlocked the padlocks to the two lockers, which were filled with boxes and other items. The boxes were not sealed; either they were open at the top or, at the most, their flaps were tucked in. When the officers selected a container, Leslie looked at its contents and identified their owner. Only one box was labeled; that box had "Ed" written on it. In this box were various items including a sealed envelope containing three photographs of defendant's girlfriend. Also in storage was a dresser that, according to Leslie, defendant used. Its drawers were shut but not locked. The search and inventory were photographed and videotaped.
In May 1995, the victim's daughters identified the following items as belonging to the victim. From the box labeled "Ed," they identified a radio, a wind-up clock, maps inscribed by the victim, a pair of binoculars, and a folding travel alarm clock. From the dresser found at the storage facility, they identified a case containing a class ring and a can of pepper spray or mace. In another box found in storage, there were several boxes containing jewelry, various pieces of which they identified as the victim's property.
The State presented the following stipulated evidence. Seventeen latent fingerprints suitable for comparison were obtained from the victim's home and car, and hairs were recovered from the victim's car. None could be matched to defendant or Donald, or to Lionel Lane, Lester Salter, Corey Jenkins, or Michael Turner. The latter four we shall discuss later. The State rested its case.
The defense asserted that the State failed to prove defendant guilty of the charged offense beyond a reasonable doubt. The theory of the defense was that the true murderers were Lionel Lane, Lester Salter, Corey Jenkins, and Michael Turner. Lane was charged, tried, and convicted of the victim's murder in 1995. However, when defendant was charged with committing the crime, Lane's conviction was vacated on the State's motion. The defense presented several witnesses in support of its theory. The evidence that defendant presented consisted of much of the evidence that the State presented at Lane's trial.
Defendant's evidence at trial was essentially as follows. In July 1993, Lieutenant Peter Burgert of the Kane County sheriff's department interviewed Lane. On November 2, 1993, Burgert had a conversation with Lorie Mohle, who was Lane's ex-girlfriend. Burgert again interviewed Lane expressly regarding the victim's death.
On November 27, 1993, in the course of his investigation, Lieutenant Burgert photographed an automobile belonging to Michael Turner. It was a Plymouth Sundance that was "cream and tan, maybe some brown in it." On December 23, after again speaking with Mohle, Burgert, she, and another detective went to the victim's house and parked about 100 feet away. In April 1994, Burgert and other officers returned to the victim's house and parked at the same location. Some officers entered the victim's house and fired a gun several times. Those remaining in the car could hear the gun while the engine was running, the windows were down, and the radio was on; and also when the engine was off, the windows were up, and the radio was off.
Oscar Dorrise was an inmate at the East Moline Correctional Center. In late May 1994, he was in the Kane County jail in the same cellblock as Lionel Lane, whom he did not previously know. At their first meeting, Lane said that "he had a lot of things on his mind" and asked Dorrise if Lane could trust him. Dorrise answered in the affirmative. Lane said that he had shot an "older lady" in the head in a house in Aurora.
In October 1994, Dorrise was released from jail on bond. He received a visit from Lieutenant Burgert. As a result of their conversation, Dorrise related Lane's confession to Burgert. At the time of this conversation, charges were still pending against Dorrise. Although Dorrise believed that Lieutenant Burgert could "help" Dorrise with his pending charges, Burgert did not intervene. Dorrise received nothing in return for his testimony at Lane's trial. Further, his testimony for defendant was the same testimony that he gave for the State at Lane's trial.
The State adduced the following additional evidence on cross-examination. Dorrise had four prior felony convictions: two robbery convictions and convictions of burglary and unlawful use of weapons. At Lane's trial, Dorrise testified that Lane had confessed to him in July 1994, when he and Lane were not in the same cellblock. Lieutenant Burgert gave Dorrise $50 and informed him of a reward for information leading to the arrest of the victim's killer. However, Burgert did not ...