Appeal from the Circuit Court of Jackson County. No. 00-CF-277 Honorable E. Dan Kimmel, Judge, presiding.
The opinion of the court was delivered by: Justice Donovan
Defendant, Donald Forcum, appeals the order of the circuit court of Jackson County, sentencing him to natural-life imprisonment for first-degree murder, 30 years' imprisonment for attempted first-degree murder, 30 years' imprisonment for armed violence, and 30 years' imprisonment for home invasion. On direct appeal to this court, defendant raises three issues: (1) whether a special interrogatory denied defendant a fair trial where the subject of the interrogatory-whether the crime was committed in an exceptionally brutal or heinous manner-was not an element of the offense, (2) whether defendant was denied a fair trial due to the repetition and emphasis of prejudicial evidence, including gruesome photographs, hearsay, the attribution of the decedent's mental state, and the presentation of a letter and a taped message during the State's closing argument, and (3) whether his convictions for home invasion and armed violence should be vacated because they violate the one-act/one-crime rule. For the following reasons, we affirm defendant's convictions and sentences for first-degree murder, attempted first-degree murder, and home invasion, and we vacate defendant's conviction for armed violence.
This case involves the brutal murder of a young woman, Renee DiCicco, and the savage attempted murder of Renee's new boyfriend, Brett Janecke, by defendant, Renee's former boyfriend. Defendant and Renee lived together in Carbondale for a period of time during their involvement in the house Renee resided in at the time of her murder. The relationship ended in the spring of 2000. After the breakup, Renee was introduced by her cousin to a man named Brett, who lived in Chicago. Renee and Brett began a long-distance relationship, talking on the phone several times a week. A few weeks before her murder, Renee visited Brett in Chicago. After this visit, Brett sent Renee roses. Shortly after sending the roses, Brett began to receive intimidating and threatening messages on his answering machine. Among other things, the caller stated that he was not "Renee's ex [sic]" but was "her current and forever lover." Brett called Renee about the messages and asked Renee, "[W]ho is this psycho pussy calling me on my answering machine?"
On Wednesday, June 7, 2000, Renee returned home from a trip to find a 22-page letter waiting for her from defendant. The rambling letter showed defendant's anger and hatred toward Renee. In this letter, defendant called Renee names such as tramp, liar, whore, enchantress, and harlot. Defendant expressed his anger over the breakup and his feelings of betrayal. Finally, defendant concluded the letter with a warning about what he would do if she attempted to contact him: "[I will] come crashing down upon the heads of *** Brett [and others] with a thunderous vengeance and furious anger and they will know that my name is Houdini because I can disappear and reappear just like magic you see, and no man nor [sic] beast nor [sic] nothing [sic] man-made can either hold or contain me." After reading the letter, Renee became upset and contacted Brett for comfort. The next day, Thursday, June 8, 2000, Brett arrived in Carbondale to visit Renee.
On Friday, June 9, 2000, Renee worked until 3 p.m. After work, Renee and Brett spent the rest of the afternoon canoeing and swimming. They ate dinner at Quatro's Pizza and then picked up a bottle of wine. They returned to Renee's apartment around 11 p.m., consumed some wine, talked for a while, and then fell asleep on the couch.
Brett testified that during the early morning hours of Saturday, June 10, 2000, he woke from his sleep on Renee's couch to Renee asking, "What are you doing, Donnie?" Prior to this, Brett had not heard any knocking at the door or heard any sounds of a break-in. Brett got up off the couch and saw the arm of someone in the apartment. The intruder told Brett, "Now you get to call me a psycho pussy to my face." Brett recognized the voice to be the same as the voice that had left the threatening messages on his answering machine. At that point, an object hit Brett twice on the side of his head. He fell to the couch with his knees on the cushions, his hands on the back of the couch, and his back to defendant. Seconds after his fall onto the couch, an object flashed in front of Brett's face, and he reached out to grab it. Defendant pulled it away and the object cut deep into the flesh on Brett's hand. The knife came slashing down again at Brett, and as he tried to duck his chin down, the knife sliced through his lip over his teeth and over his eye. Renee was screaming and then Brett felt something cut through his neck. Blood started to flow down Brett's chest and back. Renee then tried to get in between defendant and Brett. She jumped on Brett's neck, and the weight caused him to start to fall down. Although Brett began to feel lightheaded from the loss of blood, he tried to catch himself on the arm of the couch and he kicked at defendant. He fell to the ground and could not get back up. He lay on the floor unable to move, blood streaming from his neck and face.
Brett then heard Renee ask: "Am I going to die now? Am I going to die now?" To which he heard defendant respond, "Yes, you're going to die now, [b]itch." Brett then heard a gurgling noise coming from the direction of Renee. Renee's hand, which had been holding Brett's toe, went limp. Defendant then walked to where Brett lay, hit him on the head, and stated, "Told you not to fuck with me, you son of a bitch." Brett heard defendant drag Renee into another part of the house. Brett was unable to move because he was lightheaded from blood loss.
Brett testified that he then heard defendant return to where he was lying. Although Brett was conscious, he was unable to move, due to his injuries. Defendant started slashing at Brett's neck with the knife. Brett lay on the floor, taking the pain and unable to move. Defendant finally stopped cutting into Brett, walked to another part of the room, and then moments later walked back to Brett and said, "I'll see you in hell." Defendant then walked out the back door.
Renee's neighbor, Cecilia Potter, testified that while she was sitting in her living room, she heard banging and crashing coming from Renee's house. Cecilia and her mother ran outside to see what was happening and observed the walls of Renee's house shaking and items falling off of Renee's porch and heard what sounded like people stomping around inside. They heard Renee scream and then silence. They ran inside and called 9-1-1.
Officers responded to the 9-1-1 call. Inside Renee's apartment, the officers found Brett lying on the floor. At first, they thought he was dead, but he mumbled and they realized he was still alive. Before the ambulance arrived to take Brett to the hospital, Brett told one of the officers that the attacker had mail at the apartment with his name on it. The officer followed a trail of blood that led them to Renee's bedroom. Officers found that a full-length mirror attached to the wall near the entrance to Renee's bedroom was shattered and there were blood smears on the wall. Renee's dead body was lying on her bed. She lay on her back on the bed with her knees bent and hanging over the side of the bed. She was covered in blood and knife wounds. The shorts she had been wearing had been removed and were wrapped around her right wrist, and her arms were lying above her head.
Renee had numerous deep, gaping defensive cuts on her forearms and hands. She had cutting wounds on her right shoulder, bruises on her thighs, a stab wound on her foot, and multiple deep-cutting wounds on her face and thighs. Defendant had made multiple slashes with his knife across the soft tissues of Renee's neck, which had sliced all of the flesh around Renee's neck except for one small, one-inch section in the back of her neck. Defendant's knife cut through Renee's skeletal muscle in her neck, her voice box, her windpipe, and the two jugular veins on either side of her neck. The knife nicked the bone of her spine. Renee died of blood loss from the multiple cutting wounds that she had received to her face, neck, chest, and extremities.
There were no signs of forced entry at Renee's apartment. In the living room, police found a large pool of blood, clumps of Renee's hair on the floor, and splatters of blood on the television, couch, and walls. A blood trail with drag marks led back into Renee's bedroom. A Band-Aid box and Band-Aid wrappers were on the floor covered in blood and fingerprints. A blood trail led into the bathroom. The floor and vanity in the bathroom were covered with blood drops. There was also an open box of matches and a can of paint thinner. Defendant's latent fingerprints were found on the paint thinner. Brett testified that prior to his falling asleep that night, the blood-covered Band-Aid box had not been lying on the living room floor and the matches and paint thinner had not been present in the bathroom. In the kitchen area, there was a trail of blood leading toward the back door to the back porch area of the house, and the officers found defendant's bicycle outside, near the back door.
Investigators searched defendant's residence and found a used Band-Aid on his dresser. In addition, they found a blood stain in the sink area of his bathroom. They collected defendant's boots, which were found on a deck outside his home. A DNA test of a portion of one of the shoelaces from his boot revealed a blood stain that contained a mixture of DNA profiles. A DNA profile consistent with Renee's DNA was the major contributor to the blood stain. Later on the same day of the attack, defendant was arrested and processed at the Jackson County jail. A jail nurse noticed a cut on one of defendant's index fingers and multiple abrasions on defendant's arms and back. The jailer who booked defendant also noticed that defendant had several scrapes on his back and under his arms, scratches on his legs, and a big cut on his index finger which was still freshly bleeding.
A forensic scientist analyzed the DNA of the blood on the Band-Aids found lying on Renee's living room floor and discovered a mixture of DNA profiles, with one major contributor. Defendant could not be excluded as the major contributor, and the scientist calculated the statistical number of people in the Caucasian population that could not be excluded was 1 in 940 billion. The scientist concluded that defendant was the likely donor of the DNA profile found on the Band-Aid box.
One of defendant's roommates testified that she saw defendant leave the house at approximately 10:30 p.m. on June 9, 2000. Defendant stated that he was going to a bar called The Cellar, in Carbondale. Defendant did not have a car but had access to a roommate's bicycle that defendant frequently used for transportation.
Several witnesses testified that they saw defendant at The Cellar after 10 p.m. None of them saw any cuts or bandages on defendant's hands at that time. Defendant left The Cellar around midnight. His roommate testified that he saw defendant return home about 12:30 a.m. and leave a short time later with a gym bag. Defendant returned to The Cellar at approximately 12:50 a.m. and left again sometime before closing.
Following a jury trial on May 25, 2001, defendant was convicted of first-degree murder, attempted first-degree murder, armed violence, and home invasion. The jury also found that the State had proved beyond a reasonable doubt that defendant had committed the offenses by exceptionally brutal or heinous behavior indicative of wanton cruelty. As a result, the trial court sentenced defendant to an extended term of natural-life imprisonment for first-degree murder, 30 years' imprisonment for attempted first-degree murder, 30 years' imprisonment for armed violence, and 30 years' imprisonment for home invasion.
Defendant first argues that the court and the prosecutor violated the separation-of-powers doctrine by altering the elements of the offense of first-degree murder and violated the prohibition against ex post facto laws by the use of a special interrogatory.
Prior to the May 2001 trial, the State filed a notice of intent to seek an extended-term sentence. The State alleged that the offense charged in the information had been accompanied by exceptionally brutal and/or heinous behavior indicative of wanton cruelty. At the time of the instant offenses, the brutal or heinous character of a crime was not an element of any charged offense but was a matter for judicial consideration at sentencing. 730 ILCS 5/5-5-3.2(b) (West 2000). This brutal or heinous nature of a crime had been determined by legislative act to be a reason to impose an extended-term sentence. 730 ILCS 5/5-5-3.2(b) (West 2000). In order to comply with the requirement of finding the extended-term factor of brutal and heinous behavior beyond a reasonable doubt as required by Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the State tendered a special interrogatory, which stated, in part: "Has the State proven beyond a reasonable doubt that the offense was committed by exceptionally brutal or heinous behavior indicative of wanton cruelty?" The jury answered in the affirmative, and based on its finding, the court sentenced defendant to an extended term of natural-life imprisonment for first-degree murder.
This court must first determine whether section 5-5-3.2(b) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-5-3.2(b) (West 2000)), as it existed on the date of the crime, was unconstitutional, based on Apprendi, because the statute fails to require proof of brutal or heinous behavior beyond a reasonable doubt. The answer is that the statute was not and is not unconstitutional if the finder of fact, in this case the jury, is required to determine the aggravating factor beyond a reasonable doubt. This conclusion is based on People v. Thurow, 203 Ill. 2d 352, 366, 786 N.E.2d 1019, 1027 (2003).
The defendant in Thurow was charged, under sections 9-3(a) and (f) of the Criminal Code of 1961 (720 ILCS 5/9-3(a), (f) (West 1998)), with involuntary manslaughter of a family or household member. The jury found defendant guilty after it had been instructed on the elements of involuntary manslaughter. The sentencing judge determined that the defendant was eligible for an enhanced sentence because the victim was a member of the defendant's household (720 ILCS 5/9-3(f) (West 1998)). Alternatively, the sentencing judge determined that the defendant was eligible for an extended-term sentence based upon the young age of the victim (730 ILCS 5/5-5-3.2(b)(4)(i) (West 1998)). As a result, the trial court sentenced the defendant to eight years in prison, a sentence within both the 3- to 14-year enhanced sentencing range (720 ILCS 5/ 9-3(f) (West 1998)) and the 5- to 10-year range for an extended-term sentence (730 ILCS 5/5-8-2(a)(5) (West 1998)). The appellate court vacated the sentence, on the basis that it violated Apprendi, and remanded for a new sentence not to exceed the five-year statutory maximum for the Class 3 felony of simple involuntary manslaughter. People v. Thurow, 318 Ill. App. 3d 128, 742 N.E.2d 880 (2001). The Illinois Supreme Court affirmed the appellate court's judgment that the defendant's enhanced sentence had been imposed in violation of Apprendi, but it reversed the appellate court's order vacating the sentence and affirmed the eight-year sentence imposed on the defendant by the trial court, because the error was harmless considering the overwhelming nature of the uncontradicted evidence in support of the enhancing element. Thurow, 203 Ill. 2d 352, 786 N.E.2d 1019.
As a part of its analysis in Thurow, the court found that section 9-3(f) was constitutional and was not void ab initio. The court stated:
"There is no indication here as to the evidentiary standard
that is to be applied in making the household-member determination.
Under section 9-3(f), this finding could be made by a preponderance
of the evidence. However, it also could be made based upon proof
beyond a reasonable doubt. Under Apprendi, a finding, based upon a
preponderance of the evidence, that the victim was a member of
defendant's household could not form the basis for an enhanced
sentence. As noted, such a procedure would be unconstitutional.
However, there is no violation if this determination is made beyond
a reasonable doubt. Because this latter, constitutionally correct
procedure is allowed by section 9-3(f), it cannot be said that
there is no set of circumstances under which the statute would be
valid. See In re C.E., 161 Ill. 2d [200,] 210-11[, 641 N.E.2d 345,
350 (1994)]. Section 9-3(f) is not unconstitutional on its face.
Accordingly, we reject defendant's contention that section 9-3(f)
is void ab initio." Thurow, 203 Ill. 2d at 368, 786 N.E.2d at
Apprendi does not require that section 5-5-3.2(b)(4)(i) of the Unified Code be considered unconstitutional if the correct standard of proof is applied in determining the aggravating factors. Apprendi stands for the following proposition: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63. That is exactly what occurred in this case. At the trial, the question of whether the crime had been committed in a brutal or heinous manner was submitted to a jury and proved beyond a reasonable doubt through the use of a special interrogatory.
We find the recently decided cases of People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117 (2001), and People v. O'Quinn, 339 Ill. App. 3d 347, 791 N.E.2d 1066 (2003), to be instructive. In Crespo, the Illinois Supreme Court held that a 75-year, extended-term, prison sentence based on the brutal and heinous nature of the crime was not error. On rehearing, the defendant asked the supreme court to vacate his extended-term sentence because the circuit court had not complied with Apprendi. In a supplemental opinion filed upon the denial of rehearing, the court declined to reverse the sentence, holding that any error that might have occurred did not rise to the level of plain error because the evidence overwhelmingly showed that the crime had been brutal and heinous and there was no basis for concluding that the jury would not have found that the crime had been committed in a brutal and heinous manner indicative of wanton cruelty.
In O'Quinn, we held that the State's use of a special interrogatory to determine the age of the victim beyond a reasonable doubt did not violate any of the defendant's constitutional rights. O'Quinn involved the prosecution of a defendant for the murder of a 13-month-old child. Section 5-5-3.2(b)(4)(i) of the Unified Code (730 ILCS 5/5-5-3.2(b)(4)(i) (West 2002)) allows for the court to impose an extended-term sentence when the victim is under the age of 12. At various times throughout the trial, testimony was presented that the victim was 13 months old. In order to comply with Apprendi, the State tendered a special interrogatory asking the jury: " 'If you have found the defendant guilty of first-degree murder[,] do you also find that the victim, Emmarld Jade Jackson Bradley[,] was under the age of twelve at the time he committed the offense?' " O'Quinn, 339 Ill. App. 3d at 359, 791 N.E.2d at 1076. The jury answered in the affirmative. Based on this finding, the trial court sentenced the defendant to an extended-term sentence of 70 years' imprisonment. We affirmed.
Based on Crespo and O'Quinn, we hold that the court did not err in the allowance of the use of the special interrogatory. In fact, we find the facts in our case make it easier to reach this conclusion compared to Crespo, where the jury did not even find the element of brutal or heinous behavior beyond a reasonable doubt and the Illinois Supreme Court still found there to be no prejudicial error. In our case, the element of brutal or heinous behavior was found by each and every juror. We conclude that the court was acting in its express authority in allowing the use of the special interrogatory and that the interrogatory caused no harm or prejudice to defendant. See People v. Testin, 260 Ill. App. 3d 224, 235, 632 N.E.2d 645, 652 (1994) ("Although the use of special interrogatories in criminal cases is not favored, they have been used without harm or prejudice to the defendant."); see also United States v. Ross, No. 99 CR 469 (N.D. Ill. March 22, 2002) (memorandum opinion and order) (since the decision in Apprendi, federal district courts have proceeded by submitting special interrogatories to the jury for a determination of drug type and quantity). In order to comply with the mandate of Apprendi, it was imperative that the State have the jury find the age of the victim beyond a reasonable doubt. Had the State not done so, upon sentencing, defendant may not have been eligible for an extended-term sentence. But see Thurow, 203 Ill. 2d at 368, 786 N.E.2d at 1028 (an Apprendi violation is subject to harmless error analysis). The State's use of a special interrogatory to determine the age of the victim beyond a reasonable doubt complies with Apprendi, does not violate any of defendant's constitutional rights, and causes no prejudice to defendant.
Additionally, defendant claims that the court and the prosecutor violated the prohibition against an ex post facto application of the law "by adding an element of the offense at trial." Defendant argues that because the ex post facto prohibition prohibits the legislature from retroactively altering the definition of a crime or increasing the punishment for a criminal act, his case should have been governed by the law in effect at the time of the offense.
As a result of Apprendi, the Illinois legislature amended the extended-term statute. Pub. Act 91-953, §10, eff. February 23, 2001 (amending 730 ILCS 5/5-8-2(a) (West 1998)); see also People v. Swift, 202 Ill. 2d 378, 386 n.1, 387 n.2, 781 N.E.2d 292, 296 n.1, 297 n.2 (2002). After the amendment, the section stated that where a "trier of fact" finds "beyond a reasonable doubt" the presence of one of the factors in aggravation set forth in section 5-5-3.2(b) of the Unified Code, the judge may sentence the defendant to an extended term. 730 ILCS 5/5-8-2(a) (West 2000). This amendment became effective February 23, 2001, almost two months prior to defendant's trial in April 2001. *fn1 Section 111-3 of the Code of Criminal Procedure of 1963, regarding the required form of criminal charges, was also amended at the same time. Pub. Act 91-953, §5, eff. February 23, 2001 (amending 725 ILCS 5/111-3 (West 1998)). That change now requires the State to provide written notice whenever a fact, other than a prior conviction, that is not an element of the offense will be used to seek an increased range of penalties.
An ex post facto law is one that is retrospective, affects substantial rights, and disadvantages the defendant. Miller v. Florida, 482 U.S. 423, 430, 96 L. Ed. 2d 351, 360, 107 S. Ct. 2446, 2451 (1987). A defendant does not, however, have a "vested right" in the modes of procedure used at his trial. Miller, 482 U.S. at 430, 96 L. Ed. 2d at 360, 107 S. Ct. at 2451; Dobbert v. Florida, 432 U.S. 282, 293, 53 L. Ed. 2d 344, 356, 97 S. Ct. 2290, 2298 (1977); People v. Felella, 131 Ill. 2d 525, 536, 546 N.E.2d 492, 497 (1989). The ex post facto clause does not limit the legislature's control of remedies or modes of procedure, so long as they do not affect matters of substance. Beazell v. Ohio, 269 U.S. 167, 70 L. Ed. 216, 46 S. Ct. 68 (1925).
The amended versions of section 111-3 of the Code of Criminal Procedure of 1963 and section 5-8-2(a) of the Unified Code (730 ILCS 5/5-8-2(a) (West 2000)) merely affect a mode of procedure. The amendments clearly did not alter legal rules to make convictions easier, nor did they increase the punishment for a previously committed offense or make any changes to the elements of the offense of murder. The only change made is that the finder of fact must determine the existence of the relevant aggravating factors beyond a reasonable doubt, thereby increasing the burden required of the State. The amendments do not violate the ex post facto provisions of the ...