Appeal from the Circuit Court of McHenry County. No. 97-CF-1519 Honorable Ward S. Arnold, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
A jury convicted defendant, Edward A. Milka, of first-degree murder (felony murder) (720 ILCS 5/9--1(a)(3) (West 1996)). The trial court sentenced defendant to 75 years' imprisonment. Defendant moved for the payment of $7,000 in fees to James Young, whom the court had appointed as an expert for defendant. The court awarded Young $3,000 in fees. Defendant and Young appeal. We affirm defendant's conviction but reverse his sentence and remand the cause for resentencing. Furthermore, we affirm Young's fee award.
A grand jury charged defendant with five counts. Count I alleged that he committed first-degree murder (720 ILCS 5/9--1(a)(2) (West 1996)) in that he asphyxiated his niece, B.M., knowing that his act created a strong probability of death or great bodily harm. Count III alleged that he committed first-degree murder (720 ILCS 5/9--1(a)(3) (West 1996)) in that he asphyxiated B.M. while committing the forcible felony of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 1996)). Count IV alleged that he committed predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 1996)) in that defendant, who was at least 17 years old, put an object into the vagina of B.M., who was less than 13 years old. Counts II and V are not relevant here.
Before trial, defendant moved in limine to exclude a "vision statement" that he gave the police during their investigation. The court denied the motion, deeming the statement an admission.
Also, on defendant's motion, the court appointed various experts to assist him. Among those experts was Young, the chief coroner of Ontario, Canada. The court ordered the county to pay Young $5,000 as a retainer for his services.
At trial, the State produced the following evidence relevant to our analysis. John Dolan testified that on May 17, 1997, he was canoeing on the Kishwaukee River near the Hemmingson Road Bridge in Union. He saw on a sandbar the corpse of a young girl. The girl was nude from the waist up and had white tape on her neck. Dolan figured that the girl was B.M., who had been reported missing from Elgin. Dolan called the police.
On cross-examination, Dolan testified that a drive between Union and Elgin would take 30 to 40 minutes.
Jeff Skornia testified that in 1997 he was eight years old. He lived in an apartment building in Elgin, and B.M. lived across the hall. The last day he saw B.M., they went to Wing Park with two friends, Xavier and Vanessa. Skornia and B.M. then returned to the apartment building and went inside. Skornia entered his apartment, woke his mother, and gave her a Mother's Day present.
On cross-examination, Skornia testified that he and B.M. were at the park from about 5 p.m. to about 6 p.m. When they returned home, Skornia did not see defendant. When the police spoke to him, Xavier, and Vanessa, someone told the police that "there had been a male white teenager who was weird and strange in the park."
Denise Kathleen Bango, Skornia's mother, testified that on May 8, 1997, she was napping in her apartment. At 6 p.m., Skornia woke her and gave her a Mother's Day present. B.M. disappeared the same day.
Eugene Lowery, a McHenry County deputy sheriff, testified that Dolan discovered B.M's body about a mile downriver from the Hemmingson Road Bridge. Several white farmhouses were in the area. B.M. was identified from her dental records. She was examined at the county morgue on May 18, 1997. She was wearing jeans with the zipper partially open and underpants turned inside out.
On cross-examination, Lowery testified that no evidence was discovered in the area where B.M. was found. Although defendant's home and vehicle were searched, B.M.'s shirt was never found. No tape matching that on B.M.'s neck was found. The tape on B.M.'s neck contained no evidence. B.M.'s body and clothing contained no skin, hairs, bite marks, or fluids linking B.M. to defendant. A couple of days after B.M. was discovered, the temperature of the river was 11 degrees Centigrade.
On redirect examination, Lowery testified that defendant was the prime suspect because he gave a false alibi and stated that B.M. was cold, wet, and "not breathing."
Craig Henderson, a special agent for the Federal Bureau of Investigation (FBI), testified that on May 10, 1997, he searched a blue Lincoln Towncar belonging to Florence Milka, defendant's mother. Henderson recovered some fabric samples from the car's seats and carpets. He also recovered a McDonald's cup and lid, which were under some plastic bags on the floor behind the passenger's seat. The interior of the car was generally unkempt. The trunk contained a vacuum cleaner and some garbage bags.
Karen A. Lanning, a physical scientist for the FBI, testified that fibers on B.M.'s jeans were consistent with those in the carpets of the Lincoln. Lanning could not determine when the fibers got onto the jeans.
Melissa Anne Smrz, a supervisory special agent for the FBI, testified that she examined blood on a floor mat of the Lincoln and on the McDonald's cup and lid. The blood genetically matched that of B.M. B.M.'s relatives were excluded as sources of the blood. Smrz could not determine when the blood got onto the mat, cup, and lid.
On cross-examination, Smrz testified that she found no blood or semen in the pubic and rectal areas of B.M.'s jeans and underpants. She found no semen on a vaginal swab from B.M.
Wendi Howlett (Wendi), B.M.'s mother and defendant's sister, testified that on May 8, 1997, she and B.M. lived in an apartment building in Elgin. B.M. was 11 years old. About noon, B.M. had a sandwich, a soda, and a can of fruit cocktail, including diced peaches, pears, and grapes. About 4 p.m., Wendi and B.M. went to McDonald's. B.M. had chicken nuggets, french fries, and a drink, and Wendi had a drink as well. About 5 p.m., B.M. went to Wing Park with her friends. Wendi left her apartment to visit her sister-in-law and returned about 6:10 p.m. B.M. was not there, and Wendi believed that she was still at the park. Wendi began getting ready to go to work. She and defendant worked together at night, vacuuming and collecting garbage. That night, they were to meet for work at a factory called W.J. Dennis. At 6:10 p.m., Wendi did not see defendant or the Lincoln.
Wendi testified that, about 6:30 p.m., B.M.'s friends were outside the apartment building, but B.M. was not. B.M.'s friends told Wendi that they saw B.M. riding her bicycle toward Wendi's sister-in-law's house. B.M. was not there, and Wendi called the police. They arrived about 7:10 p.m., and various friends and family began looking for B.M. B.M.'s bicycle was found where it was usually kept, in the basement of Wendi's apartment building. Although Wendi had agreed to meet him at W.J. Dennis, defendant drove the Lincoln to Wendi's apartment building, arriving shortly after 8 p.m. He saw people gathered in front of the building and asked Wendi what happened.
On cross-examination, Wendi testified that she and defendant worked at W.J. Dennis on May 7, 1997. After work, they left their cleaning supplies there, and defendant drove Wendi home in the Lincoln. Among the supplies that remained at W.J. Dennis was the vacuum cleaner that was in the trunk of the Lincoln on May 10. When defendant arrived at the apartment building on May 8, the backseat of the Lincoln contained a garbage can that was left at W.J. Dennis the night before. Defendant's clothing did not appear unusual. He joined the search for B.M.
Wendi testified that, when defendant was very young, their father took them to a railroad museum in Union. They never went there again. At trial, defendant was 23 years old.
Wendi further testified that, on May 7, 1997, she, B.M., and defendant took the Lincoln to McDonald's and bought drinks at the drive-through window. Defendant, who was driving, handed a cup to B.M., who was in the backseat. The cup looked like the one that the police recovered from the Lincoln.
Glen Theriault, an Elgin police officer, testified that he was dispatched to help look for B.M. He arrived at Wendi's apartment building about 12:30 a.m. on May 9, 1997. He was told that defendant was the last person to see B.M. About 12:45 a.m., Theriault arrived at defendant's house, and defendant exited a house up the street. Defendant approached, and Theriault asked him where he last saw B.M. Defendant said that he last saw her leaning against Wendi's car outside her apartment building. He said later that he saw her sitting on the hood of the car, and he said even later that he saw her on the stoop outside the door of the building. He said that he had gone to the building to pick up Wendi for work, but Wendi was not there, and he then saw B.M. rollerblading. He added that B.M. did not enter his car.
On cross-examination, Theriault testified that, when he first saw him, defendant had a beer in his hand. Theriault noticed nothing unusual about defendant's face or clothing. After speaking to Theriault, defendant agreed to go to the police station.
James Patrick Picardi, another Elgin police officer, testified that on May 9, 1997, about 1:30 a.m., he was present during an interview with defendant at the police station. Defendant said that, on May 8, he left his home at 5:45 p.m. Although he initially intended to go to W.J. Dennis, he decided to drive the Lincoln to Wendi's apartment building. He arrived there at 6:15 p.m., saw B.M., and asked her where Wendi was. B.M. replied that Wendi was at the park, looking for her. Defendant said that Wendi was to meet him at W.J. Dennis.
Picardi testified that defendant told him that B.M. entered the Lincoln, talked to him for a while, gave him a hug and a kiss, and exited the car. Defendant waited for about 10 minutes as B.M. rode her bicycle up and down the sidewalk. B.M. then may have taken the bicycle into the building. Defendant left for W.J. Dennis about 6:30 p.m., stopping at a Speedway gas station at Big Timber and McLean. He entered the Speedway and bought some cigarettes. About 7 p.m., he arrived at W.J. Dennis, noticed a car in the parking lot, and decided to return later to begin his work. Upon returning, he entered and set up his supplies. He watched a clock for an hour, smoking cigarettes and drinking soda, and Wendi did not appear. Defendant put his supplies into his car and left about 8:30 p.m., driving toward Americhem, another business where he and Wendi worked. On the way, something hit his windshield, and he stopped at the same Speedway to wash the windshield. He went to Americhem, saw that Wendi's car was not there, and continued to Wendi's apartment building, arriving there about 9 p.m. He was told that B.M. was missing, and he drove through Wing Park, looking for her. He returned, picked up his sister Dawn, and checked another park. He then dropped Dawn back at the apartment building and returned to his own neighborhood, where he drank beer and smoked eight or nine "bowls" of marijuana with his friends. During the interview, defendant produced a bag of marijuana.
On cross-examination, Picardi testified that Theriault told him that defendant was acting strangely and appeared to be intoxicated. Picardi acknowledged that using marijuana and alcohol may alter one's mental state and skew one's perception of time. Although he was unclean, defendant's face and clothing were not incriminating. In the early morning hours of May 9, 1997, defendant consented to a search of the Lincoln. Picardi saw a garbage can occupying most of the backseat. The interior was dirty and cluttered. The exterior had mud in the wheel wells and on the windshield. The mud on the windshield had been smudged by the wipers. Defendant's father stated that the mud was not there the previous morning. Picardi acknowledged that Wing Park was muddy where it was not paved and that defendant said that he drove across an unpaved area. Near the end of the interview, about 4 a.m., defendant stated that his marijuana use was affecting his memory.
On redirect examination, Picardi testified that he did not believe that defendant was under the influence of alcohol or marijuana.
Don Doran, president of W.J. Dennis, testified that he was in his office at the factory until about 8:10 p.m. on May 8, 1997. He could see from his office the parking lot in front of the building. When he left the building, defendant was not inside, and Doran's car was the only one in the front parking lot. Doran's car was a blue-green Lincoln Towncar. No other cars were in the front parking lot after 4:30 p.m. On cross-examination, Doran acknowledged that the building had other parking lots that he did not see. On redirect examination, Doran stated that the cleaning staff always entered the building through the front entrance.
Robert Michael Beeter, an Elgin police officer, testified that on May 9, 1997, about 3:40 p.m., defendant agreed to show him where he was the night before. Defendant entered Beeter's car, and Beeter drove as defendant recounted his activities. His account substantially matched the one that he told at the police station, but he added the following details. The car that he saw in the parking lot at W.J. Dennis was a white Cadillac. When that car was gone, he parked in the front parking lot. After he learned that B.M. was missing, he spent about 20 minutes searching in Wing Park by himself and about 20 minutes searching in the second park with Dawn. He could not identify where in Wing Park he drove off the paved road. After he dropped off Dawn, he stayed at Wendi's apartment for a short time and returned to his own neighborhood about 10:30 p.m.
Beeter testified that "a lot of the things [defendant] told us we proved to be a lie later on."
Valerie Betty, an FBI fingerprint specialist, testified that she compared defendant's palm print to a latent print on the lid of the McDonald's cup that the police found in the Lincoln. She determined that defendant was the source of the print on the lid. She could not determine the age of the print on the lid. She could not state that no one else touched the lid.
Regina Cervantes testified that her house was two or three houses away from defendant's house. On May 8, 1997, about 10:30 p.m., defendant came to her house and told her that B.M. was missing. He stated that B.M. had been playing in the park and that he had gone to pick her up. He further stated that he had told B.M. to wait by the car and that, when he returned, she was gone. Cervantes testified that defendant was upset and crying but did not appear to be under the influence of alcohol or marijuana. He stayed in the house until the police arrived at his own house. He did not smoke any marijuana.
Gustavo Castro testified that, in the afternoon of May 8, 1997, he, defendant, and Ricardo Flores shared two or three marijuana joints. They did not smoke eight bowls. About 5:30 p.m., defendant left Castro and Flores at Cervantes' house and planned to meet them there after work. He returned about 10:30 p.m. and said that B.M. was missing. He spoke with Cervantes and then watched television with Castro and Flores. At Cervantes' house, defendant drank one or two beers but did not smoke any marijuana. He was not under the influence of alcohol or marijuana. He did not ask for help in looking for B.M.
Flores testified that, at Cervantes' house, defendant stated that he last saw B.M. "sitting on top of the car." Defendant further stated that he spoke to B.M. and drove away.
Jewel Howlett (Jewel), B.M.'s stepgrandmother, testified that Wendi and B.M. visited her house about 3 p.m. on May 8, 1997. Each had a drink in a McDonald's cup. B.M. emptied her cup and left it at Jewel's house. About 3:45 p.m., as Wendi and B.M. left Jewel's house, Wendi gave her own cup to B.M. and told her that she could finish its contents. That cup looked like the one that the police recovered from the Lincoln.
Richard E. Bisbing, vice president and director of research at McCrone Associates, Inc., testified as an expert in forensic microscopy. He studied a sample of water from the Kishwaukee River and samples of tissue from B.M.'s lung, liver, and rib. He found diatoms in the river water and similar diatoms in the lung tissue. He found no diatoms in the liver or the rib. He concluded that river water was in B.M.'s lungs.
Larry William Blum, a forensic pathologist, testified that he performed an autopsy on B.M. A piece of tape, 10 to 12 inches long and 3/4 of an inch wide, stretched from B.M.'s right ear, down across her chin, and up toward her left ear. The airways to her lungs contained hemorrhagic pulmonary edema fluid. Her stomach contained recently eaten food, including meat like chicken, fruit like pear or mixed fruit, and potato, probably french-fried. B.M. ate that food two or three hours before she died. Blum found two tears in B.M.'s hymenal ring and other evidence of blunt trauma in her vaginal area. Her vagina contained a large amount of blood, indicating that the tears occurred "very shortly before death." The tears were caused by the insertion of an object and were evidence of a sexual assault.
Blum concluded that B.M. died of asphyxia, such as by strangulation, suffocation, or drowning. However, in light of Bisbing's diatom analysis, Blum doubted that B.M. drowned. Because Bisbing found no diatoms in the liver or the rib, Blum suspected that the river water entered B.M.'s lungs after she died.
On cross-examination, Blum testified that he found no evidence indicating who killed B.M. There was no evidence indicating the precise method of asphyxia. There was no evidence of injury on B.M.'s neck. There was little evidence of a struggle. Alone, Blum's examination could not determine when B.M. died. Although he doubted it, Blum could not "totally rule *** out" the possibility that B.M.'s hymenal tears were caused by bicycle riding. He could not determine when B.M. entered the river or whether she was dead at that time. Unlike blood in B.M.'s nose and mouth, the blood in B.M.'s vagina was not the result of decomposition.
Brian Gorcowski, an Elgin police officer, testified that he spoke to defendant at the police station on May 10, 1997. Defendant stated that he had lied to the police and that he wanted to tell the truth. He stated as follows. On May 8, about 4 p.m., he smoked eight bowls of marijuana with Castro and Flores. About 5:40 p.m., he went to Wendi's apartment building, arriving there about 6 p.m. He saw B.M. ride her bicycle up and down the street and then take it into the building. She then exited the building and sat on Wendi's car. Defendant motioned to her, and she entered his car. She told him that Wendi was not home. He waited until about 6:15 p.m., gave B.M. a hug and a kiss, and went directly to W.J. Dennis. There he saw a white Cadillac in front, and he did not enter the building because he was under the influence of marijuana and did not want to be seen. He drove around and finally parked in the lot east of the building, waiting for the Cadillac to leave. Gorcowski's partner told defendant that a surveillance video may have shown that his car was not in that parking lot, and defendant replied that he did not park there. Defendant stated that he entered the building about 8:15 p.m., when the Cadillac was gone. He stayed for about 50 minutes but did not work.
Gorcowski testified that defendant next stated that he began driving back to Wendi's apartment building and that mud hit his windshield. He stopped to clean the windshield at the Speedway on Big Timber. Although he had stopped at the Speedway earlier in the day, he had not gone inside to buy cigarettes. He did not explain why he had stopped. He stated that he arrived at Wendi's building about 9:10 p.m., that he looked for B.M. in Wing Park, that he and Dawn looked for her in another park, and that he arrived at Cervantes' house about 11 p.m. There he drank some beer and smoked more bowls of marijuana.
Gorcowski next testified to what defendant would call his "vision statement." Gorcowski testified that he told defendant that, because he was the last to see B.M., he could be "connected" to her. Gorcowski asked him to "imagine" where she was. Defendant closed his eyes, rubbed his temples, and stated that B.M. was close, that she was near Elgin, and then that she was in Elgin. Gorcowski asked what she was doing and how she felt, and defendant began to cry, saying that B.M. was cold and wet and was not breathing. Defendant then asked for a cigarette, and Gorcowski escorted him outside, where defendant smoked a cigarette and paced back and forth, shaking his hands and mumbling. He said that he saw two Hispanic males driving a gray Oldsmobile and drinking Budweiser. They were touching B.M. but not trying to have sex with her. Defendant then resumed crying and said that he wanted to tell Wendi that he knew that B.M. was dead. At that point, defendant hugged Gorcowski for about a minute.
Gorcowski testified that he and defendant went back inside. On defendant's request, Gorcowski called Wendi, who agreed to come to the station. Before she arrived, defendant again closed his eyes and rubbed his temples. He said that he saw a white farmhouse and farmland, a bridge, rocks, water, a creek, a dirt road, and a gravel road. He again mentioned that male Hispanics were touching B.M. and then that B.M. was not breathing but did not drown. She was not sexually assaulted. Wendi arrived and spoke with defendant privately for about three minutes. Defendant then told Gorcowski that he was just having "visions" and that B.M. was not really dead. Gorcowski testified that defendant did not appear to be under the influence of alcohol or drugs.
Chris Troiola, an Elgin police officer, testified that he obtained the Speedway's surveillance tape from May 8, 1997. The parties stipulated that the tape would show that defendant did not enter the Speedway on that date.
Neal Haskell, a forensic entomologist, examined samples of insect larvae and eggs taken from B.M.'s body during her autopsy. Based on their development and the conditions to which B.M.'s body was exposed, Haskell concluded that B.M. died sometime before the late afternoon of May 9, 1997. On cross-examination, Haskell acknowledged that his opinion was based on some speculation. Nevertheless, his opinion was within a reasonable degree of scientific certainty.
The parties stipulated that B.M. was born in February 1986 and that defendant was born in June 1976. They further stipulated that John Kenney, a forensic odontologist, would testify that he positively identified B.M.'s body. "[T]o avoid possible confusion on jury deliberation," the State nol-prossed counts II, IV, and V. The State rested, and the court denied defendant's motion for a directed verdict.
Defendant produced the following evidence relevant to our analysis. Ronald E. Menold II, a forensic chemist for the FBI, testified that he compared the tape on B.M.'s neck to a tape in the Lincoln. He concluded that the tapes were different.
Florence Milka (Florence), defendant's mother, testified that defendant lived with her throughout his life. On May 8, 1997, she drove the Lincoln to work about 8 a.m. and returned home about 5:15 p.m. About 5:45 p.m., defendant drove the Lincoln to work. At no time did the car contain a garbage can. About 7:45 p.m., Wendi called and told Florence that B.M. was missing. Florence's daughter Tracey drove her to Wendi's apartment building. Defendant arrived there in the Lincoln about 8:15 p.m. He was surprised to learn that B.M. was missing, and he joined the search. On the morning of May 9, mud was in the wheel wells of the Lincoln, and a garbage can was in the car.
Florence testified that defendant was a slow learner who had extreme difficulty reading and writing. He had trouble understanding conversations and could not manage a bank account.
Florence stated that, when defendant was about two years old, Florence and her husband took their children to a railroad museum in Wisconsin. They never took them to the museum in Union.
Florence testified that B.M. had frequent nosebleeds. About two weeks before she disappeared, she had a nosebleed in the backseat of the Lincoln. Florence did not subsequently clean the car's carpets. On May 10, 1997, Florence told members of her family, including defendant, that a psychic envisioned that B.M. was dead and was cold, wet, and near a bridge in a wooded area. She did not remember the ...