Appeal from the Circuit Court of Cook County. Honorable Lawrence P. Fox, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
The defendant admits he was present in his apartment when Nannette Krenzel (Krenzel) was stabbed to death. He also admits he helped remove the dead body and then dump it just over the border, in Wisconsin. At trial and on appeal the defendant, through his lawyer, contends his wife, acting alone, committed the murder. The jury did not buy it. Neither do we. *fn1
A jury convicted defendant Michael Lee of first degree murder for the stabbing death of Krenzel. The trial court found the crime exceptionally brutal and heinous and sentenced defendant to an extended term of 70 years in prison.
Defendant appeals both his conviction and sentence, and raises the following issues: (1) whether the State proved him guilty beyond a reasonable doubt; (2) whether defendant was allowed to adequately present his theory of defense during opening statements; (3) whether the trial court erred when it refused to allow him to introduce evidence he believed was relevant to his theory of defense; (4) whether the trial court erred in allowing the State to introduce evidence of a "prior domestic disturbance;" (5) whether the trial court erred in its answers to two questions asked by the jury during deliberations; (6) whether the trial court erred in considering poems written by the victim's daughter as part of a victim impact statement, and, in a supplemental brief; (7) whether defendant's case should be remanded for resentencing pursuant to Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000).
We affirm defendant's conviction, but remand the case for resentencing pursuant to Apprendi.
Krenzel was stabbed to death on May 13, 1995. Her body was left a few feet from a Wisconsin highway, just across the Wisconsin/Illinois border.
At defendant's trial, Jacob Stutz (Stutz), Krenzel's boyfriend, testified he and Krenzel were living together in a northwest Chicago apartment in May 1995. On May 12, 1995, Stutz went to a pub to watch a basketball game with his stepfather, his brother, and his brother's girlfriend. At about 9:30, Krenzel came into the bar. She was wearing a black windbreaker, black jeans, and sneakers. Stutz testified Krenzel also was wearing two rings and a bracelet, jewelry she always wore.
Stutz and Krenzel argued. They ended their argument outside the bar and Stutz told Krenzel their relationship "[was] over." Stutz decided to leave, but found his brother's car was blocking his van. He asked his brother to move his car. As he was leaving he saw Krenzel walking east in an alley by the pub. When Krenzel didn't return home that night or the next day, Stutz began calling her family and friends in an attempt to find her. On May 15, 1995, he called the police and reported Krenzel missing.
The police called Stutz on May 16, 1995, and told him a woman's body was found in Wisconsin. Stutz went to the police station in Kenosha, Wisconsin, where he was shown a photograph of the body. Stutz identified the woman as Krenzel.
Donna Kilburn (Kilburn) testified she and defendant married in June 1994. In December 1994, they moved into the basement of the same Chicago apartment building where Kilburn's parents lived.
On April 24, 1995, Kilburn and defendant got into an argument. Kilburn testified she picked up a baseball bat and started swinging it at defendant. As she and defendant were struggling over the bat, it hit Kilburn on the side of the head and her ear began bleeding. During the argument, Kilburn's father came downstairs. When he saw Kilburn's injury, he "went after" defendant. According to Kilburn, defendant put his arms around her father to restrain him and they both fell to the floor. Kilburn's father landed on the concrete base of a pillar, cracking a rib and puncturing his lung. Kilburn's father was admitted to the hospital and treated for his injuries.
Kilburn testified she had an argument with one of the police officers that came to the hospital because he would not take a statement from her. The officer wanted to speak to Kilburn's father directly, but was not able to. Kilburn was angry because the officer was going to leave the hospital without making a report of the incident. Later, Kilburn and her mother filed charges at the police station on behalf of her father.
After that incident, defendant moved out of the basement apartment he shared with Kilburn and moved in with her brother. On May 12, 1995, defendant called Kilburn and asked if they could meet that evening. She agreed and defendant picked Kilburn up from work.
At around 10:30, Kilburn and defendant went to a bar located at the corner of Western and Addison streets in Chicago. Kilburn described the bar as "primarily a lesbian bar" and during cross-examination said she and defendant joked about "picking up" another woman. After Kilburn and defendant had a couple of drinks, a woman Kilburn identified as Krenzel entered the bar and sat down next to defendant. Kilburn said Krenzel was wearing jeans and a black windbreaker.
According to Kilburn, Krenzel appeared inebriated. She started a conversation with defendant and borrowed cigarettes from him. Krenzel told them she came to the bar on a friend's dare. Kilburn said she and defendant stayed at the bar for a couple of hours. Just before they left, Krenzel started to leave. On her way out, Krenzel stopped at a table near the door and began insulting some of the other patrons. Kilburn and defendant decided to help get Krenzel out of the bar before she got hurt. The three of them left the bar together, and Kilburn asked Krenzel if she wanted a ride home. Krenzel said her grandmother lived close to the bar. When they got into the car, Krenzel wasn't able to give clear directions to the house, and suggested they go to another bar up the street. Kilburn and defendant agreed.
When they arrived at the second bar, Kilburn and defendant saw several of their friends. Defendant began playing darts and Kilburn sat with her friends Esther Hinterhauser, Tracy Lizak, and Holly Ubrig.
Krenzel walked around and talked to several people. She started singing kareoke and fell off the stage. Krenzel walked over the table where Kilburn was sitting and spilled a drink on her. Kilburn told defendant she wanted to leave. Krenzel left with them. Kilburn said the three of them were in the bar for about 20 minutes before they left.
After they left the bar, defendant, Kilburn, and Krenzel got into defendant's car. Krenzel said she wanted to go back to the bar where her boyfriend was watching the basketball game earlier in the evening. She told them she could walk home from there. Kilburn and defendant told Krenzel they didn't want to go to another bar. At some point, the three of them instead decided to buy a six-pack of beer and go back to Kilburn and defendant's apartment.
Kilburn testified Krenzel was very loud as they were entering the apartment and she told Krenzel to "quiet down." Once they were inside the apartment, Kilburn changed her clothes because they were wet from the drink Krenzel spilled on her. Krenzel sat on the couch in the livingroom and asked defendant to turn on the radio. After she changed clothes, Kilburn brought beer to defendant and Krenzel. When Kilburn saw Krenzel leaning over defendant she indicated to Krenzel that defendant was her husband.
At some point, Kilburn went to the back bedroom "to get away from [Krenzel] for a little while." Kilburn's children normally stayed in the back bedroom, but they were not there that night. A bunk bed was in the back bedroom, but because Kilburn's children broke her waterbed, the mattress of the lower bunk was in her bedroom. Kilburn laid down on the top bunk.
Kilburn testified she heard a banging noise soon after she went into the back bedroom. She walked into the front bedroom and saw Krenzel unclothed, laying face-up on the mattress on the floor. Defendant was positioned over Krenzel. When Kilburn walked over, she noticed bruises on Krenzel's face and blood on her neck. Though Kilburn testified she did not know what defendant hit Krenzel with, during a pre-trial interview she told the Assistant State's Attorney she saw defendant hit Krenzel with a bat.
Kilburn testified she saw defendant cut Krenzel's neck with a knife. He placed the knife into Krenzel's neck and pulled it out. Krenzel started making a "gurgling noise" and Kilburn testified she and defendant put a pillow over Krenzel's face. Though Krenzel struggled, she eventually quit fighting and making noise. Kilburn said they cut and stabbed Krenzel multiple times. Kilburn testified defendant had the knife first, and then gave it to her. She used it.
After they finished stabbing Krenzel, defendant went to get his car. When he returned, they rolled Krenzel's body in their comforter and carried her to the trunk of the car. They drove to Wisconsin where defendant pulled off the interstate onto a side road. He parked and got out of the car, but got back in and drove a little farther when he saw some other cars pass by. When he pulled over again, he got out and took Krenzel's body out of the trunk. Kilburn did not get out of the car and did not see how Krenzel's body was left. Defendant got back into the car and drove home.
Once they got back to their apartment, defendant asked Kilburn to make a pot of coffee. After she made coffee, Kilburn told defendant she had a headache. Defendant gave Kilburn medicine for her headache and she fell asleep on the couch. When she woke up, the apartment was clean. The mattress was in the furnace room. Defendant was trying to clean blood out of the carpet, but wasn't able to get the stain out. Kilburn finished cleaning the carpet. Defendant and Kilburn did not leave the apartment that day.
May 15, 1995, was Mother's Day and Kilburn spent the day with her mother and several other relatives. Kilburn left early and went home. A couple of weeks later, Kilburn quit her job. She and defendant moved to Arkansas around Memorial Day 1995, without telling anyone where they were going.
Kilburn called her mother just before Christmas 1995. She didn't tell her anything about the murder during this conversation. On December 28, 1995, Kilburn called her mother again. Kilburn's mother told her she knew why they left Chicago and asked "what the woman looked like." Kilburn told her the woman had dark hair and green eyes. During another conversation in January 1996, Kilburn told her mother she and defendant moved Krenzel's body in a car. Kilburn said defendant could never come back to Chicago.
Kilburn testified her relationship with defendant was "wonderful" while they were in Arkansas. On January 29, 1996, the police arrived at the Arkansas apartment Kilburn shared with defendant. They questioned Kilburn about Krenzel's murder, and she initially told them she was responsible for it. The police searched the apartment and confiscated a knife belonging to defendant. When Kilburn was questioned at the police station, she told them defendant was involved.
Kilburn testified before the grand jury in Chicago. She then returned to Arkansas to move their things out of the apartment. While she was packing their things, she found an old purse. Kilburn initially threw the purse away, but her mother looked inside it and found jewelry. Kilburn gave the jewelry to the police when she realized it was not hers. Several witnesses testified the jewelry belonged to Krenzel.
Kilburn testified she felt responsible for Krenzel's death for several reasons. She said she suggested they help get Krenzel out of the bar before she got into a fight. Kilburn felt she could have insisted Krenzel find her own way home. Kilburn said she also felt responsible because of her "involvement that night." Finally, Kilburn felt she should have done something to help her husband before he had "these troubles."
During cross-examination, defense counsel asked a number of questions concerning Kilburn's temper. She also was asked about the April 24, 1995, incident that resulted in the injuries to her father. She said she was the first to pick up the bat and swing it at defendant. She said defendant never hit her father and was simply trying to restrain him when he was injured. When the police refused to take a report at the hospital, she yelled at one of the officers and was arrested for disorderly conduct.
Defense counsel also asked her whether she and defendant had been to the lesbian bar where they met Krenzel prior to that night. She said they had, and indicated she and defendant joked about "picking up" another woman on the night they met Krenzel.
During cross-examination, Kilburn said she was in the front bedroom with defendant and Krenzel before she went into the back bedroom. Kilburn denied she "made a pass" at Krenzel, then became angry when Krenzel rejected her. When she was asked whether she punched Krenzel in the face, she said "I believe I did." Kilburn said she and defendant both stabbed and cut Krenzel. Kilburn said she was not "enraged" when she participated, nor was she drunk.
While they were in Arkansas, Kilburn managed the apartment complex they lived in and worked as a certified nurse's aid. Defendant worked as a mechanic for Wal-Mart. She testified she never felt like a hostage during the time they were in Arkansas and had a "good life" there.
Defense counsel also asked Kilburn if she had written to defendant during the time he was in custody. She said she had written him many letters. Counsel asked if she wrote a letter in which she said she "[couldn't] believe [she's] allowed to live in society." She was also asked whether she wrote a letter in which she said "For some unknown reason, I am allowed to continue living in society while the person I put my whole world into is an inmate" and "Why I am not [sic] being punished by society as well, why am I financially content?" In a Valentine's Day card Kilburn sent defendant in 1997, she wrote, "Thank you for my freedom. I should show you my appreciation more often." Finally, Kilburn was asked whether she wrote a letter in which she said, "I am sorry for the pain I have caused you. I do ...