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People v. Cunningham

June 28, 2002


Appeal from the Circuit Court of Cook County Honorable Lon Schultz, Judge Presiding.

The opinion of the court was delivered by: Justice Quinn


Following a jury trial, defendant, Demetrius Cunningham, was convicted of first degree murder, aggravated kidnaping, robbery and aggravated vehicular hijacking. Defendant was 15 years old at the time the incident occurred. Defendant was sentenced to 80 years for first degree murder, 30 years for aggravated vehicular hijacking, 15 years for aggravated kidnaping and 7 years for robbery. The sentences were ordered to run concurrently. Defendant now timely appeals.

On appeal defendant argues that his convictions should be reversed where: (1) he was arrested without probable cause; (2) his confession should have been suppressed; and (3) he was not proven guilty beyond a reasonable doubt; and the trial court erred: (4) in permitting a witness to identify him in court; (5) in denying his objection to hearsay; (6) in denying his motion to bar the State's footprint expert's testimony; (7) in permitting the State's footprint expert to testify regarding his statistical theory; and (8) in failing to order a mistrial when a detective deliberately violated a court order. Finally, defendant claims that the prosecutor's comments during closing arguments and rebuttal deprived him of a fair trial. Also, in a supplemental brief, defendant argues that his extended-term sentence violates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

We will discuss the issues relating to defendant's confession and the testimony of the State's footprint expert in this opinion. All other issues will be discussed in a Rule 23 (166 Ill. 2d R. 23) order issued contemporaneously with this opinion. For the reasons that follow, we affirm defendant's convictions and sentence.


On November 23, 1994, Elsie Orlinsky, the 80-year-old victim, was abducted in her 1992 Oldsmobile Delta from the Walgreen's parking lot on 55th Street and Lake Park Avenue in Chicago. Later that afternoon, her body was found at the 63rd Street beach. The victim's car was not found at the scene.

A. State's Case In Chief

Chicago police evidence technician Thomas Reynolds testified that on November 23, 1994, he processed the crime scene. Reynolds testified that the victim's head was bloody. Near the body, Reynolds observed a walking cane broken into three pieces, some blood on the bottom of a 55-gallon drum that was near the victim's head and impressions of shoeprints near the body. No fingerprints could be lifted from the drum because the surface was unsuitable. Reynolds photographed the scene, the victim and the footprint impressions.

Richard Rubin testified that on November 23, 1994, he was a detective with the Chicago police department who drew composite sketches. Rubin met with a witness, Jose Lopez, who provided him with information from which he generated a composite of the alleged offender in this case.

Jose Lopez testified that on November 23 he was making a delivery in the Hyde Park area. Lopez said that while stopped at a stop sign at 53rd and Kimbark Street, he saw a late model Oldsmobile pull into the intersection. The car, which was 15 feet away, stopped in front of Lopez for approximately 10 seconds. Lopez testified that later that evening, after seeing a story about the murder on the news, he contacted the police and described the driver of the car. Lopez viewed a lineup at Area 2 but told detectives he was unable to identify the man he saw in the car that day. When asked which of the men most resembled the man he saw, Lopez identified a man in the lineup named James Pugh. On approximately December 15, 1994, Lopez was shown a photograph array which included a photograph of the defendant. Lopez said he was unable to identify the driver of the car from the photographs. A few days later Lopez was shown another photograph array which included a picture of the defendant. Lopez said that if you put glasses and a mustache on the defendant, "he looks just like him (the offender), he's got that same goofy look."

Donald Sebastian testified that he is the assistant principal of the Mt. Carmel High School. Sebastian testified that the beach area of 64th Street and the lakefront was approximately one mile east of the school. Sebastian testified that on November 23, 1994, the school day was shortened from 8:30 a.m. to 12:05 p.m. as it was the day before Thanksgiving. Mt. Carmel's attendance records indicated that defendant was present in school that day.

Gregory Talbert testified that on November 23, 1994, he was walking across the intersection of 55th Street and Lake Park Street. He saw a green Oldsmobile speeding south on Lake Park, come skidding to a stop, and almost hit him. Talbert said he looked inside the car and saw a white, older lady pressed up against the glass of the window. He saw the man on the driver side grab the lady, put her in a head lock and punch her until she was unconscious. Approximately five to seven seconds elapsed until the car pulled away. Talbert viewed a lineup in early December of 1994 and positively identified James Pugh as the driver of the car. In October of 1998, Talbert was shown a photograph of the original lineup and again identified Pugh. At trial, Talbert testified that he was now only 40% sure that the man he identified in the lineup was the driver of the car.

Douglas Heilman testified that he was a special agent with the Federal Bureau of Investigation (FBI) in Chicago on November 23, 1994, assigned to a carjacking homicide. On December 12, 1994, he processed the victim's Oldsmobile for evidence. Thirty-three fingerprints were lifted from the car. Ten fingerprints and one palmprint matched the prints of Lamont Borom. None of the fingerprints recovered matched those of James Pugh or defendant. In addition, a black and yellow screwdriver was recovered from the car. Heilman testified that on December 14 he executed a search warrant at defendant's home and recovered five pairs of tennis shoes and a nylon jacket.

Theodius Jackson testified that on November 25, 1994, he was standing on a street in East Chicago, Indiana, when defendant and his brother, Jason Cunningham, pulled up in a new-looking car. When he asked where they got the car, defendant responded that he bought it from his uncle in Chicago for $500. Jackson saw Indiana plates on the car on that date. A few days later, Jackson again saw defendant. Defendant said he was meeting Lamont Borom because Lamont was using the car. Jackson testified that he again asked defendant where he got the car and defendant said he hit an old white lady and took her car. Jackson further testified that on the evening of December 1, 1994, he was riding around in the Oldsmobile with defendant and Lamont. Jackson said that defendant again told him that he hit an old white lady and took her car "by the Loop." When questioned where "the Loop" was, defendant said it was on the other side of Mt. Carmel. Defendant told Jackson he took the lady's purse, $10 and her keys. While riding in the car that night, defendant took a screwdriver out of the armrest and began scraping a handicap sticker off the window. Jackson stated that defendant had a light mustache in November of 1994 and looked basically the same now as he did when the incident occurred.

Lamont Borom testified that around Thanksgiving of 1994 he saw defendant and his brother in a green Oldsmobile. Borom said that the defendant told him he got the car from a dope-dealing uncle in Alabama for $500. Borom testified that a week later he drove the car with Jackson and defendant riding as passengers. When Jackson questioned defendant as to where he got the car, defendant said he hit an old white lady "in the Loop" and dragged her out of the car. Defendant said he took her purse, $10 and keys to her car. Borom was driving the car on December 12, 1994, with Jackson when they were pulled over by a police car and arrested. Borom testified that defendant allowed him to keep possession of the car as long as he picked defendant up from school.

Dr. Edmund Donoghue testified that he is the chief medical examiner for Cook County. Donoghue conducted the post-mortem examination of the victim, Elsie Orlinsky. The examination revealed multiple injuries to the head and face including a skull fracture and subgaleal hemorrhage. In addition, the victim's body had injuries consistent with being defensive injuries. Donoghue concluded that the injuries observed on the victim were consistent with the victim having been struck by a cane and a 55-gallon drum and that she died as a result of blunt trauma.

Assistant State's Attorney (ASA) Peter Faraci testified that on December 12, 1994, he interviewed defendant in the presence of his father. ASA Faraci said that defendant told him that in November of that year he had left school and was walking to the train station when a man pulled up in a vehicle at 63rd Street and Dorchester Avenue and asked him if he wanted the car. Defendant said that he looked in the car to see if there was any blood, and once he determined that there was nothing wrong with the car he said he would take it. Defendant told ASA Faraci that he took the car, replaced the license plates and drove back to Indiana. Defendant said that he could identify the man who gave him the car. ASA Faraci asked defendant's father to bring him back to the station on December 14.

Chicago police detective Michael Baker testified that on December 12, 1994, he received a call from the East Chicago police department that a car taken in a Chicago homicide had been recovered. Baker proceeded to the station in Indiana and interviewed defendant. Defendant's parents were present at the station. Baker said that defendant told him that he was walking in the vicinity of 61st Street and Dorchester Avenue at around 4 p.m. on November 23 when a man pulled up in a car. Defendant said the man offered the car and he took it, driving it to Indiana, where he changed the license plates. Defendant said that he was watching the news on Thanksgiving Day when he saw a news story about a carjacking and murder. A composite sketch of the alleged offender was part of the story. Baker showed defendant the composite sketch of the offender and defendant said it had a strong resemblance to the man who gave him the car. Baker testified that at that time he took defendant to the area of 61st Street and Dorchester so that he could identify where he got the car.

Baker then took defendant back to Area 2, where ASA Faraci spoke with defendant briefly. Baker then requested that, due to the late hour, defendant's parents bring him back to the station on December 14 because they had a suspect, James Pugh, in custody and they wanted defendant to identify him.

Baker testified that on December 14 the defendant and his father returned to Area 2. Defendant viewed a lineup containing James Pugh but was unable to identify anyone as the man who gave him the car. Baker said that defendant was then brought into an interview room alone. During the motion to suppress, Baker testified that defendant's father did not request to have an attorney present, nor did defendant request an attorney. Although defendant's father was present at the station, he was not present in the interview room. Baker confronted defendant with the statements obtained from Borom and Jackson. Defendant said that he wanted to tell the truth. At that point, Baker said he advised defendant of his Miranda rights. Baker testified that defendant's statement remained consistent with his previous statement but that defendant said he bought the car from the man for $250. Baker testified that he told defendant that he did not believe him. Defendant then told him that after school he was in the vicinity of 54th Street and Lake Park Street when he saw an older white woman get forced into a car by a black male. He observed a struggle and then the car pulled out of the lot. Defendant said he ran after the car and followed it to the beach house at 64th Street Beach. He said he saw the black male drag the lady out of the car and beat her with a cane. The man then took her purse and fled. Defendant said he then jumped in the car and took off.

Baker testified that he told defendant the story was nonsense. Defendant then put his head down, sat there for a minute and said "I went off, I killed her, I took the old white lady's car." Defendant continued saying that he wanted the car so he brought a disguise (a heavy jacket and ski mask) to school, went to the Walgreen's parking lot, approached the car and shoved the old white lady in the car. Defendant said she was struggling and tapping on the window so he held her down. He pulled behind the beach house, pulled her out and "just lost it," hitting her with a garbage can several times. He then drove off. Defendant told Baker that he had destroyed the disguise, except for the pair of gym shoes he was wearing which were under his bed at home. Baker participated in the execution of the search warrant of defendant's home which recovered a pair of Nike gym shoes. Despite the confession, defendant was released from Area 2 that evening. Defendant was not charged with the homicide until one year later.

On cross-examination Baker testified that defendant was originally interviewed as a witness. However, after he viewed the lineup, defendant was not free to leave until they had straightened out why he was unable to identify Pugh. Baker admitted that defendant was alone in the interview room with him and another detective, that he knew defendant was only 15 years old and that although youth officers were present that evening in Area 2, none were present during the interview. Baker additionally testified that defendant did not give a written statement.

At this point of the trial, the State informed the court that the footprint expert it was going to have testify, William Bodziak, had not yet arrived. As it was early in the day, the defense agreed to proceed with its case and allow the State's expert to testify the next day. The jury was informed of this. William Bodziak subsequently testified that he is a self-employed forensic consultant in the area of documents, footwear and tire impression evidence. Bodziak testified that from 1970 until 1998 he was a special agent for the FBI. Bodziak spent many of those years at the FBI in the laboratory division developing classes of footwear and tire impressions. Bodziak has been qualified as a footwear, tire and document examiner since 1976. He had testified as a footprint expert more than 100 times.

Bodziak testified that defendant's Nike shoes were sent to him for analysis in 1995. Bodziak evaluated the photographs of the foot impressions from the scene by creating a series of test impressions including overlays. Bodziak testified that, in regard to the left shoe:

"I found that the size and the design corresponded. I found the general condition corresponded; but I wasn't able to find any of the accidental random characteristics that would enable a positive identification. Based on this examination, I am of the opinion that this shoe could have made this impression; but there was insufficient detail and accidental characteristics of an identifying nature that would have enabled me to go further and say this shoe positively made it."

Bodziak testified similarly with regard to the right shoe as well.

B. Defendant's Case

Before Bodziak arrived, Paul Sahs testified that he was a retired police officer self-employed as a forensic consultant. Sahs also made test impressions and compared defendant's shoes with the impressions left in the sand at the scene of the crime. When questioned about the left shoe, Sahs testified that "his opinion was that the known shoe did not make the impression in the sand because of various differences." Sahs testified similarly with regard to the right shoe as well.

Denise Davis testified that on November 23, 1994, as she approached the intersection at Lake Park Street and 55th Street, she saw an older white female walk towards a greenish Oldsmobile in the Walgreen's parking lot. Davis saw a black male, medium build, wearing a skull cap and thick glasses, with a mustache and a little fuzzy gray and black beard, approach the woman from behind. Davis testified that she was approximately 10 feet from this man and had a good opportunity to see his face. The man pushed the lady in the car into the passenger seat as he got into the car. The man was hitting the woman and she was screaming. The car then pulled out of the lot and headed west on 55th Street. Davis testified that 10 to 15 seconds had elapsed from the time the man got into the car until the car drove off. Davis ran to a police car parked on 53rd Street and told them what she had witnessed.

The next day, Davis went to Area 2 and provided detectives with a description of the man she saw. Davis told the police she would be able to identify the individual who abducted the woman from the parking lot. On December 1, Davis returned to Area 2 and viewed a lineup. Davis identified James Pugh as the man she saw involved in the carjacking. At trial, Davis testified that defendant was not the man she saw abduct the victim from the Walgreen's parking lot. Davis admitted on cross-examination that she believed she had seen the abductor on two occasions after the incident.

Detective Paul Bernatek testified that he arrested James Pugh on December 1, 1994, on unrelated charges. Bernatek observed bruising on the palms of both of Pugh's hands when he was arrested. Photographs of Pugh's hands were taken and introduced into evidence at trial. Bernatek testified that Pugh was placed in three lineups on December 1. Bernatek stated that both Denise Davis and Gregory Talbert positively identified Pugh, while Mr. Lopez stated that, of the participants in the lineup, Pugh most resembled the abductor. Dr. Darryl Graden testified that he was a dentist who examined defendant's teeth several ...

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