Appeal from the Circuit Court of Kane County. No. 95-CF-902 Honorable Donald C. Hudson, Judge, Presiding.
The opinion of the court was delivered by: Justice Gilleran Johnson
Following a jury trial, the defendant, Edward Tenney, was found guilty of first-degree murder (720 ILCS 5/9--1(a)(2) (West 1992)) and sentenced to a term of natural life imprisonment. On appeal, the defendant argues that (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court abused its discretion during voir dire; and (3) his sentence is invalid under the rule articulated in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Originally, in an opinion dated April 29, 2002, this court affirmed the defendant's conviction but vacated his sentence and remanded for a new sentencing hearing. People v. Tenney, 329 Ill. App. 3d 430 (2002).
On December 27, 2002, the Illinois Supreme Court vacated this court's opinion and directed us to reconsider our judgment in light of its decisions in People v. Kaczmarek, 207 Ill. 2d 288 (2003), People v. Thurow, 203 Ill. 2d 352 (2003), People v. Swift, 202 Ill. 2d 378 (2002), and People v. Crespo, 203 Ill. 3d 335 (2001). In Swift, the supreme court held that the sentencing range for first-degree murder in Illinois is 20 to 60 years' imprisonment. Swift, 202 Ill. 2d at 392. In order to comport with Apprendi, any factual findings which increase a defendant's sentence beyond that range, such as a finding that the crime was accompanied by brutal and heinous conduct, must be proven to a jury beyond a reasonable doubt. Swift, 202 Ill. 2d at 392. In Crespo, Thurow, and Kaczmarek, the supreme court held that Apprendi violations are susceptible to harmless and plain error analyses. Kaczmarek, 207 Ill. 2d at 303; Thurow, 203 Ill. 2d at 368; Crespo, 203 Ill. 2d at 347. In accordance with the supreme court's directive, we consider these cases in addressing the defendant's final contention that his sentence is invalid under Apprendi.
On May 26, 1995, the defendant was indicted on one count of first-degree murder (720 ILCS 5/9--1(a)(2) (West 1992)) and two alternative counts of felony first-degree murder (720 ILCS 5/9--1(a)(3) (West 1992)). The indictment count charging first-degree murder alleged that on October 1, 1993, the defendant shot and killed the victim, Mary Jill Oberweis, in her home on Felton Road in Aurora. The two alternative felony murder counts alleged that the defendant, while committing the forcible felonies of home invasion (720 ILCS 5/12-11 (West 1992)) and residential burglary (720 ILCS 5/19-3 (West 1992)), performed acts which caused the victim's death.
On September 12, 1997, the State informed the trial court and the defendant that it would seek the death penalty upon a conviction. On October 6, 1997, the defendant's jury trial commenced. During voir dire, the defendant asked prospective jurors whether any of them had family members or friends with drug or alcohol problems. The State objected, arguing that the question revealed the particular facts of the instant case. The trial court sustained the objection and suggested that the defendant rephrase his question in broader terms. The defendant then asked prospective jurors how they would "handle" a person with a chemical dependency. Again, the State objected to the question and the trial court sustained the objection. The defendant did not ask any further questions regarding drugs or alcohol. The parties completed jury selection on October 8, 1997.
On October 9, 1997, the State began its case in chief. The State's primary eyewitness was Donald Lippert, who had also been charged with the victim's murder. The trial court required Lippert to participate in a competency hearing before testifying at trial. When questioned by the trial court, Lippert testified that he was able to remember things for the most part, but that he sometimes had trouble remembering small things that happened in the recent past. As an example, Lippert explained that he forgot what he ate for breakfast that morning. Lippert testified that he understood the oath and that he was required to tell the truth on the stand.
When further questioned by the defendant, Lippert admitted that he was on numerous medications, including Thorazine, Xanax, and Zoloft, and that the medications made him sleepy. Lippert testified that the medications did not affect his long-term memory. When asked to identify the date, Lippert initially stated that it was September 9, and then correctly stated that it was October 9. The trial court found that Lippert was competent to testify at trial.
Lippert testified that he and the defendant were cousins. They shared a residence on Sheffer Road in Aurora during the time in question. Lippert testified that he "liked to rob houses." On October 1, 1993, Lippert had been using alcohol, marijuana, and cocaine. That evening, the defendant suggested that they go out. Lippert and the defendant started walking down Sheffer Road, both armed with .22-caliber "Ruger" pistols. After walking about a mile, the defendant pointed out a house on Felton Road. The defendant told Lippert that the house looked like it had guns or other valuables inside.
Once they reached the house, Lippert stood by trees along the side of the house, while the defendant looked through the windows. After looking through the windows, the defendant noticed that the house had an alarm system. Lippert suggested that they kick the door in. The defendant kicked the door open and they entered the house. Upon entering the house, Lippert went into a hallway where he saw some file cabinets. While trying to pry the file cabinets open, he heard screaming and a gunshot.
Lippert ran into the living room area and saw the victim bleeding from the face, trying to get up off a chair. Lippert then ran down a hallway, where he found the defendant. Lippert saw the defendant fire a shot into an empty bedroom. Lippert and the defendant went back to the living room, where the victim was. The defendant pushed the victim back into her chair and acted like he was going to shoot her. Instead, the defendant stated that his gun had jammed and told Lippert to shoot the victim. At first, Lippert refused, but the defendant threatened to shoot him. Lippert then shot the victim.
Afterwards, Lippert and the defendant left through the back door and ran towards the cornfield across the street from the house. When Lippert crossed the street, he heard people yelling outside the house. The defendant fired multiple shots in the direction of the voices. Lippert and the defendant hid in the cornfield for a period of time. When they finally exited the cornfield, the defendant asked Lippert for his gun. Lippert gave the defendant his gun.
On cross-examination, Lippert acknowledged that he was addicted to alcohol, marijuana, and cocaine. Lippert admitted that he had two prior convictions of burglary, a prior conviction of residential burglary, and a prior conviction of armed violence. Lippert also acknowledged that the State agreed to reduce his charges in this case and in other pending cases in exchange for his testimony.
Several other witnesses testified on behalf of the State. Ken Johannessen, the victim's next-door neighbor, testified that on October 1, 1993, at approximately 9 p.m., he heard a crash outside. He then walked outside his home and heard the alarm from the victim's home. He then heard two gunshots that sounded as though they were coming from the victim's driveway. After the first two gunshots, he ran towards the bushes between his home and the victim's home and heard four more shots. These shots were much louder than the first shots and came from a different direction. He heard a person running on the concrete and then saw a car drive south on Felton Road. He called to his wife JoAnn, and they entered the victim's home through the back door. He called 911 while his wife tended to the victim. Before leaving the house, he found that the back door was damaged and the inside trim had been split away.
JoAnn Johannessen testified that she entered the victim's home first and found the victim lying on a chair in the family room, unconscious and bleeding from the head. She lifted the victim's head to try to stop the bleeding. After the police arrived, she retrieved a sheet and covered the victim. When retrieving the sheet, she noticed a bullet casing on the floor of the hallway. She did not touch the casing but pointed it out to a police officer.
Deputy Jack Caudill of the Kane County sheriff's department also testified for the State. Deputy Caudill testified that, on October 1, 1993, at approximately 9 p.m., he and his partner, Deputy Thomas Friedrich, were dispatched to 1131 Felton Road in Aurora. After arriving, Deputy Caudill found JoAnn Johannessen holding the victim's head, which was bleeding from the mouth and the back of the head. At that time, Deputy Caudill looked around to make sure that nobody else was in the house. Deputy Caudill found a bullet casing on the floor of the hallway by the master bedroom and two bullet casings a few feet away from the victim. Deputy Caudill placed paper cups over the casings without touching them. Deputy Caudill did not remember if JoAnn Johannessen pointed out a casing to him.
Officer Michael Drawhorn of the Illinois State Police testified for the State. Officer Drawhorn testified that he collected the casings under the paper cups. Officer Drawhorn also recovered a bullet in the wall of the master bedroom. Officer Drawhorn noted damage to a file cabinet located in a small room.
Dr. Shaku Teas testified that he performed the victim's autopsy. Dr. Teas found one entrance-type gunshot wound on the left side of the victim's head above the ear and another on the upper lip. Dr. Teas recovered one bullet from the brain and fragments of another bullet from the jaw. In Dr. Teas's opinion, the wound to the brain was fatal. Dr. Teas also testified that the wound to the jaw also could have been fatal. In addition to the gunshot wounds, Dr. Teas found two small abrasions, one on the back of the shoulder and one on the tip of the thumb. According to Dr. Teas, the victim's death probably occurred very quickly.
Officer Michael Gumz of the Aurora police department testified for the State. Officer Gumz testified that on October 14, 1993, he arrested the defendant at his residence on Sheffer Street on an unrelated warrant. Officer Gumz testified that, at the time of the arrest, the defendant was in possession of a .22-caliber "High Standard" pistol.
Dan Gunnell testified that he was a forensic scientist with the Illinois State Police. Gunnell testified that he examined the shell casings found at the scene, the "High Standard" pistol recovered from the defendant, and a "Ruger" pistol that police also recovered. Based upon his examination, Gunnell determined that one of the shell casings was in fact fired by the "High Standard" pistol that had been recovered from the defendant. Gunnell also determined that two ...