The opinion of the court was delivered by: Justice Karmeier
Docket No. 96288-Agenda 1-May 2005.
Following a jury trial in the circuit court of Coles County, defendant, Anthony B. Mertz, was convicted of first degree murder (720 ILCS 5/9B1(a) (West 2000)), home invasion (720 ILCS 5/12B11(a) (West 2000)), and aggravated criminal sexual assault (720 ILCS 5/12B14(a) (West 2000)). At a subsequent death penalty hearing, the same jury found defendant eligible for the death penalty, and thereafter concluded there were no mitigating factors sufficient to preclude the imposition of a death sentence. Accordingly, the circuit court sentenced defendant to death on the first degree murder conviction. The court also sentenced defendant to 60 years= imprisonment on the home invasion conviction. No sentence was imposed for aggravated criminal sexual assault. Because defendant was sentenced to death, his appeal was brought directly to this court. Ill. Const. 1970, art. VI, *4(b); 134 Ill. 2d R. 603.
At the outset, we note that defendant=s guilt is not in question. He does not contest the sufficiency of the evidence in that regard. He raises no issue pertaining to the guilt/innocence phase of his trial. All issues defendant advances in this appeal relate to the propriety of his death sentence.
Specifically, defendant contends (1) evidence of his Apolitical statements, books, guns, tattoos, photos of girlfriends, internet articles, and sexually explicit sites* was either irrelevant or unreliable aggravation and was admitted in violation of the United States and Illinois constitutions; (2) aggravation testimony by a criminal Aprofiler* was improper as it was irrelevant and unreliable; (3) the use of Aunreliable jailhouse informants and unreliable, uncharged crimes* in aggravation denied defendant a fair sentencing hearing; (4) Athe death penalty is >fundamentally unjust= under section 9B1(i) of the Criminal Code of 1961 (720 ILCS 5/9B1(i) (West 2000)), when recently adopted legislative reforms in death penalty proceedings were unavailable; the aggravation relied on uncharged, unproven crimes; and the death sentence is disproportionate to lesser sentences for similar crimes*; (5) the imposition of a death sentence is excessive Ain light of the influence of prescription drugs on defendant, defendant=s inherited alcoholism, military service, employment, attending college, minor criminal conviction, church attendance, low risk of future dangerousness, and dysfunctional family*; (6) Illinois= death penalty statute is unconstitutional under Apprendi v. New Jersey, because the State is not required to prove beyond a reasonable doubt that there are no mitigating factors sufficient to preclude a death sentence; and (7) Illinois= death penalty is arbitrarily applied, Abased on race, geography, procedural evolution, discretion, and mistakes of fact, in violation of the federal and Illinois constitutions= due process and sentencing rights.*
We have thoroughly reviewed the record in this case. As the basis for our decision is dependent to a significant extent upon specific facts adduced at trial, the relationship of proper evidence to challenged evidence, and the weight of evidence in aggravation and mitigation, we set forth, hereafter, a comprehensive summary of pertinent evidence from defendant=s lengthy trial.
On June 12, 2001, Shannon McNamara was found murdered in her apartment near the campus of Eastern Illinois University in Charleston, Illinois. The primary cause of McNamara=s death was subsequently determined to have been Aasphyxia due to choking, due to a wash rag virtually stuffed into her mouth.* The wash cloth had been so tightly packed into McNamara=s mouth that it had to be removed Aforcibly* during the autopsy. The pathologist who performed the autopsy on McNamara described contributing causes of her death as follows: Amanual strangulation, smothering by placing of the hand or hands over the mouth; hemoperitoneum, that is the presence of a large quantity of blood in the peritoneum cavity due to lacerations of the liver; and *** stab cutting wound to the abdomen.*
The pathologist noted one incise wound to the left side of the victim=s chin, five incise wounds to her neck, one long incise wound to her abdomenBrunning from the base of her sternum to the top of her pubis, exposing a portion of her bowelBone incise wound between the thumb and forefinger of her left hand, another to the base of her ear, an incise wound of the vagina, an incise wound extending from the sacral area of the victim=s back to her anus, three parallel incise wounds across the breadth of the victim=s back, and one incise wound running the length of her back.
In addition to incise wounds, the victim had multiple bruises and contusions over various parts of her body. Bruises were so numerous they were not assigned numbers during the autopsy. McNamara had multiple contusions to her neck which, in the pathologist=s opinion, might have been self-inflicted, the result of her attempts to extricate hands or other objects from around her neck. The pathologist noted bruising on the left side of the victim=s neck and jaw, as well as multiple bruises and abrasions of her right elbow. Bruising was evident on the right and left sides of her mouth, on her lips, and just below her chin. The frenulum of her upper lip was torn, and bleeding was observed inside her mouth. Multiple bruises about the neck were indicative of manual or ligature strangulation. A large bruise was noted in the left hip region, and there were scattered bruises in the lower chest and upper abdominal area. Broad surface, blunt force impact had caused multiple lacerations of the liver, and significant internal bleeding. The pathologist testified that Aa severe or large amount of force* is required to lacerate the liver, and such a blow would have caused the victim Aa great deal* of pain. The victim had also suffered blows to the head that had resulted in Asubarachnoid and subdural hemorrhage overlying the brain.*
Crime scene investigation revealed that entry into the victim=s apartment had been accomplished by cutting a window screen and opening an unlocked window. The victim was apparently attacked as she slept. The condition of the victim=s bedroom and bathroom suggested that a struggle had begun in the victim=s bedroom and continued in the bathroom, where the victim was eventually overcome. The dead or dying victim was then moved to the living room of her apartment where, in the opinion of crime scene investigator Richard Caudell, she was posed or Aput on display.* The victim was laid out on her back, naked, except for a bra and a T-shirt, which had been pulled up to expose her breasts. Her arms had been extended over her head, and she had been mutilated with a butcher knife after she was beyond the point of resistance. That knife was later discovered in a dumpster behind the victim=s apartment building. A torn latex glove was discovered near the victim=s body. The handle of a box cutter, a pair of panties, and the defendant=s bent credit card were found on the hallway floor adjacent to the bedrooms and bathroom.
Defendant was subsequently questioned and denied that he knew the victim or anyone living in her apartment. He admitted he knew two females lived in the apartment because he had seen them sunbathing. Defendant said he had never been in the victim=s apartment. Defendant was arrested and charged with McNamara=s murder and related offenses.
At the guilt phase of defendant=s trial, the State adduced compelling evidence of defendant=s guilt. As noted, his credit card was found on the floor of the victim=s apartment in the area where the struggle had taken place. Moreover, scrapings from the victim=s fingernails were analyzed and were found to be consistent with defendant=s DNA profile. Testimony indicated that profile could be expected to occur in Aone in 1.8 billion white unrelated individuals.* Furthermore, shortly after the murder, investigating police officers observed marks on defendant=s face, scratches on his neck, abrasions on his knees, and bruises on his arms and elsewhere on his body. In addition, a search of defendant=s apartment revealed latex gloves secreted in a cloth bag. A box cutter was missing from defendant=s place of employment.
Various witnesses testified that defendant frequently entered locked apartmentsBwith and without authorityBusing credit cards to compromise the locks. One of defendant=s friends testified that he had visited defendant a month before the murder and heard defendant mention the victim=s name. The witness testified: A[H]e was on a website and he was looking at sports teams that I think that she was involved with and there were bios on all of the girls and he mentioned her name.* Another witness testified that she overheard defendant tell someone, during the initial stage of the police investigation, that there had been a Abrutal knife murder* across the street from his apartment building. One of the police officers supervising the investigation testified that no one had been told there was a knife involved in the murder. Finally, two witnesses who were incarcerated with defendant at the Coles County Safety and Detention Center pending trial testified that defendant made admissions and other incriminating statements to them.
Defendant presented the testimony of another Coles County inmate who stated that the other inmate witnesses had fabricated their testimony to gain favorable treatment.
Defendant=s former girlfriend, Tara Hofer, also testified on defendant=s behalf. Hofer stated that she and defendant stayed at defendant=s grandmother=s house sometime prior to McNamara=s murder. According to Hofer, she and defendant had sex that evening, and she noticed Arug burns* on defendant=s knees when they got up the next morning. Hofer acknowledged she had been interviewed by police Aon multiple occasions* following defendant=s arrest. She could not recall whether she had ever told them about the Arug burns.* Hofer also stated it was a common practice for students to use credit cards to open doors. Hofer further testified that defendant gave people permission to enter his apartment and access his computer equipment and belongings when he was not present.
Hofer stated on direct examination: AThe police tried to get me to say that [defendant] had [a] problem with women and that he was violent.* She said that was not true. On cross-examination, Hofer admitted defendant had come home drunk one evening, pulled her hair, and threatened to kill her. The following colloquy ensued between the prosecutor and Hofer:
AQ. And did you tell Master Sergeant Bernardini that Mertz
threatened to kill [you], break [your] neck, and threw you on the
Q. That was true, wasn=t it?
Q. And he placed his forearm across your throat and choked you?
Q. And he doesn=t have a problem with violence with women?
Hofer denied that she had told police officers, three months after the murder, that she would love defendant even if he had murdered McNamara. She said the police tried to get her to say that.
Jack Smith, a licensed private investigator, also testified for the defense. In support of defendant=s contention that he had cut his hand on a broken shot glass, Smith testified that he did in fact recover a broken shot glass from a trash can in defendant=s apartment.
Defendant was advised of his right to testify, and declined the opportunity. Following closing arguments, the jury was instructed on the applicable law, and subsequently returned verdicts finding defendant guilty of first degree murder, home invasion and aggravated criminal sexual assault.
The jury subsequently found defendant eligible for the death penalty in that defendant was at least 18 years old and had committed the murder in the course of another felony, i.e., aggravated criminal sexual assault or home invasion. See 720 ILCS 5/9B1(b)(6) (West 2000). The matter proceeded to the aggravation/mitigation phase of sentencing.
The State first called Cathy Boyer. Boyer testified that she resided in defendant=s apartment building in September of 2000 and, on one occasion, awoke to find defendant sitting in a chair in her apartment, watching television. She had not invited defendant into her apartment, and he did not have permission to be there. He appeared to be drunk. Boyer stated that defendant had previously opened doors in the building with a credit card and a knife. She knew him to be violent when he drank.
Roger Hudson, a foreman at Eastern Illinois University=s building services department, testified that defendant was a student worker under his supervision. Hudson said that defendant expressed an interest in female athletes. In the summer of 2000, Hudson was present when defendant said something to the basketball coach=s daughter. When she walked on without replying, defendant commented that he Aought to slap the tan off her face.* Hudson said he was aware that another building service worker had sold defendant a 9-millimeter pistol. Finally, Hudson testified that defendant had come to work one day in 2001 and commented that he had gone to Terre Haute, Indiana, Ato the McVeigh execution[,] around through there.* Defendant referred to the scene as a circus. After a few minutes, defendant stood up and saidBapparently in reference to the McVeigh executionBAWe the people, of the people, killing our own people.* Defendant then walked out of the room.
Bobby Livingston, a building service worker with the university, testified that defendant had expressed sympathy for the Afolks* in AWaco* and AWeaver Ridge.* According to Livingston, other employees were afraid of defendant. After defendant was arrested for McNamara=s murder, Lacie McDaniel, a student worker, told Livingston she had opened a closet door and had seen defendant Astanding on the sink, doing something up high.* Livingston and McDaniel went down to the janitor=s closet. Livingston lifted a ceiling tile and observed the Abutt of a gun.*
John Blevins, a Charleston police officer, testified that Lacie McDaniel had advised him that on June 12, 2001, at approximately 5:30 p.m., she observed defendant standing on a sink in a janitor=s closet with his hands above his head. When McDaniel told other building workers, they went to the closet and discovered a weapon. Blevins subsequently removed a .22-caliber revolver from ceiling tiles in the closet.
Blevins also testified that on April 12, 2001, at approximately 3:45 a.m., he was dispatched to 1128 Fourth Street in Charleston to investigate a report of two men fighting. Upon his arrival, Blevins heard a woman scream and observed defendant struggling with a man later identified as Brian Catt. The woman, Amy Joyner, pointed out defendant, and Blevins grabbed defendant, only then noticing that defendant had a knife at his side. Joyner later informed Blevins that she and Catt had been walking by defendant=s building when defendant asked them if they wanted to come up to his apartment and Aparty.* Joyner and Catt went up to defendant=s apartment and had a few drinks. When defendant started flirting with Joyner, Catt and Joyner started to leave. Defendant then called Joyner a Anarc* and pushed her down. Joyner got up and again tried to leave, and defendant again pushed her to the floor. Joyner told Blevins when she looked up she saw that defendant had Aa dagger* in his hand. At that point, Catt and defendant started fighting. Catt=s version of events was consistent with Joyner=s. Defendant said he could not remember what had happened. Joyner suffered an abrasion on her forehead and abrasions on her knuckles. As a result of the incident, defendant was charged with aggravated assault, a charge that was still pending when defendant was tried on these charges.
Defendant had previously been convicted of battery in 2000. A certified copy of that conviction was introduced as evidence. The attendant probation order, which was signed in January of 2001, indicated that defendant was on probation at the time of the incident involving Joyner in April of 2001, and at the time of the McNamara murder in June of 2001. Paragraph eight of that order states that defendant Ashall not possess a firearm or other dangerous weapon.*
Michael Jordan, the jail inmate who had previously testified against defendant, was called as a witness at the aggravation/mitigation phase of sentencing. According to Jordan, defendant said he had secreted a gun over at the college, where he worked, and had one at his house as well. Jordan said defendant told him he did not intend to spend the rest of his life in prison if things went badly at trial. Jordan stated that defendant had a wire and could pick handcuffs. If convicted, defendant planned to pick his handcuffs in the tunnel between the courthouse and the jail, and go for a guard=s weapon. Defendant also indicated he wanted to Aget even* with Mark Stabler for testifying against him. Jordan said that defendant had saved articles about himself while incarcerated and awaiting trial.
Douglas Paul testified that he was one of defendant=s good friends prior to June 12, 2001. When Paul was in defendant=s apartment, prior to that date, he noticed an article pertaining to the June 1999 murder of Amy Warner in Charleston, Illinois. Defendant had the article posted on his wall. Defendant told Paul he had killed Warner. He referred to Warner as Awhite trash.* Paul testified that, when he broke up with a woman in January of 2000, defendant asked him if he wanted defendant to Aget rid of her.* Paul stated he had seen defendant slashing the tires and seats of a Jeep after a party in July of 2000. Paul also remembered defendant yelling a racial epithet at an African-American in their apartment building=s parking lot. Paul said defendant called the other person a Astupid nigger,* and defendant=s action incited a physical confrontation. Defendant also told Paul that he had burned down an apartment building under construction across the street from his residence.
Brian Beavers, another friend of defendant, testified that he had observed defendant use a credit card to enter other people=s apartments. Defendant also told Beavers, without prompting, that he had burned down the apartment building across the street. On another occasion, defendant told Beavers he had murdered a girl in 1999, though Beavers did not think he was serious at the time.
Kristi Dewitt testified that she was a part-time police officer for Rossville, Illinois, in December of 1997. Her husband was also a Rossville police officer. Defendant came to her residence one evening at 5:30 p.m. in December of that year, asking to speak with her husband. Dewitt told defendant her husband was busy and could speak to defendant when he went on duty at 6 p.m. Dewitt=s husband was in the bathroom getting ready for work. Defendant said he Aneeded to speak with him now.* After several verbal exchanges, Dewitt asked defendant to leave. Defendant then stepped toward her aggressively, and Dewitt positioned her eight-year-old son (who was present at the door during the exchange) safely behind her. Dewitt stepped forward and told defendant if he did not leave she was going to arrest him for trespassing. Dewitt said she felt threatened by defendant. Dewitt=s husband heard the argument and came out to speak to defendant. Dewitt=s husband had to tell defendant to leave more than once before defendant finally departed. Dewitt said defendant was very loud and demanding with her. When defendant left, he spun his tires and threw gravel.
Lisle Farnum testified that he and defendant were Aroommates and best friends* in the Marine Corp. Farnum went to Charleston to visit defendant after he entered college and saw, on a Abillboard above the computer,* an article about a girl who had been murdered in Charleston.
Jeremy Deck, Tara Hofer=s cousin, testified that he socialized with defendant and Hofer for a time and often observed defendant enter locked apartments using a credit card. Deck saw a Aposter* in defendant=s apartment, mentioning Amy Warner.
James Rankin, a Coles County court security officer, testified that he had worked as a jailer in May of 2002 at the Coles County Safety and Detention Center. On May 28, 2002, defendant and another inmate were involved in an altercation. Defendant initially had the other inmate in a Abear hug,* and the incident quickly developed into a Afull out fight.* Rankin ordered all the inmates to lock down, and everyone did except those two. By that time, the other inmate had gotten defendant in a head lock and was punching him in the head. Rankin yelled at them to break it up, and the other inmate put his hands back to give up. Defendant then put his arm around the other inmate=s neck and hit him twice. Rankin called for backup and tried to stop the fight. Rankin told defendant to back off several times, to no avail. Defendant, who had the other inmate up against the bars of a door, asked Rankin if he wanted to take the other inmate=s place.
Terry Tillis testified that he was assigned to the Coles County Safety and Detention Center on May 16, 2002, when another officer contacted him about a verbal altercation in one of the cellblocks. Inmates were yelling at correctional officers and throwing trays of food. The inmates were also cursing at the officers and refusing to deadlock. Defendant, who was involved in the incident, was subsequently moved to a high security cellblock and was disciplined as a result. Thereafter, on January 16, 2003, officers attempted to put an inmate who was considered a flight risk into a cell with defendant. Defendant refused to allow the inmate in his cell. Defendant told the officers there would be an altercation by the afternoon if they put the other inmate into the cell. Defendant=s threats agitated the other inmate, so the other inmate was placed elsewhere. During the verbal exchange, a different inmate became Amouthy,* and that inmate was moved to another cellblock as a result. Tillis felt that defendant=s actions instigated the conduct of the offending inmate, something that had happened on prior occasions as well.
Anthony Lauletta testified that he returned to Charleston in February of 2000, after having been away for the weekend, and he saw that the structure across the street from his apartment building had burned to the ground. Defendant, who broached the subject in a joking manner, stated that he had burned it down. Lauletta noted that none of his other friends joked about burning down the building. Lauletta said defendant had stated he had been in all of the apartments in the building during Christmas break of 1999. Defendant also told Lauletta he had known Amy Warner personally. Lauletta knew defendant owned a handgun.
Christopher Howard was called as a witness and testified that he lived in defendant=s apartment building. Howard said defendant was verbally abusive to his girlfriend, Tara Hofer, calling her a Abitch* and a Acunt.* Sometimes, after they argued, Hofer would come to Howard=s apartment to cry and complain. On occasion, her neck would be red. Howard also testified that defendant had admitted setting the fire at the apartment building across the street. Finally, Howard stated that defendant owned a 9-millimeter handgun, which he kept in his apartment.
Hillary Spitz, a correctional officer with the Coles County sheriff=s department, testified that she was on duty on May 31, 2002, when defendant told her she Aneeded to come in his cell and scrub the walls.* She replied that was not one of her duties. Later, defendant told her she needed to Asweep and mop the floors in the hallway.* She replied she was not Ahis maid, his mother, or his nurse.* Defendant began to respond, ABut will you be my B,* when Spitz cut him off and said, AOver my dead body.* Defendant then stated, AThat=s okay as long as your body is still warm.*
Kris Phipps, the assistant fire chief for the Charleston fire department, testified that, on February 13, 2000, he responded to a fire at an apartment building under construction in the 1100 block of Fourth Street in Charleston. Phipps said the fire was later determined to have been the result of arson. Damage to the structure itself was estimated at $3.1 million. Eleven other structures were damaged as a result of the fire, two of which were damaged so badly they had to be demolished. There were approximately 20 vehicle exposures, and several vehicles were destroyed. A backhoe, two forklifts, and a construction trailer were also destroyed.
Patricia Winborn testified that she lived in Charleston, in June of 1999 and worked with Amy Warner. Winborn was also acquainted with Tara Hofer. Hofer worked at the day-care facility where Warner=s children attended. Through Hofer, Winborn met defendant. Warner had two children: a four-year-old girl and a seven-month-old boy. Winborn baby-sat for Warner=s children three weeks prior to the murder. Winborn cared for the children at Warner=s house, and she invited Hofer and defendant over to watch movies. There were photographs of Warner in the house.
Winborn also testified that she had gone to a local tavern with Hofer and defendant one evening and, while Hofer was away in the restroom, defendant grabbed Winborn=s shirt and lifted it up to expose her breasts. Winborn was Apretty offended.*
Adam Rhoads, a correctional officer with the Coles County sheriff=s department, testified that on November 11, 2001, he responded to a fight in one of the cellblocks of the Coles County Safety and Detention Center. An inmate informed Rhoads that he had been in an altercation with defendant. The inmate had a scratch on his neck and a red, swollen left eye. The inmate told Rhoads he had taken exception to defendant ordering him around and defendant responded by punching him in the eye.
Sam Gaines, a correctional officer with the Coles County sheriff=s department, testified that he was on duty on May 16, 2002, when defendant asked him what time it was. Gaines estimated the time because he did not have a watch. Defendant responded, AThat figures, you=re all fucking worthless.* After defendant made that remark, another inmate also made an Auncomplimentary* remark. Then defendant and the other inmate used additional obscene language and began rattling the bars of their cells. Gaines turned off their television and said they could have their television privileges back when they calmed down. Defendant, in an Aimpolite manner,* escalated his tone and things started to get out of control. Gaines had to summon help to quell the disturbance.
Jeff Marlow, an investigator with the Illinois State Police, testified that he met with Darsann Barker on February 4, 2002. Barker told him she had been the victim of a sexual assault that occurred when defendant was in the Marine Corps and stationed in California. Barker, an airline stewardess, had met defendant in 1996, and a relationship developed which continued for several weeks. That relationship eventually resulted in consensual sex on March 16, 1996. Barker stated she had been a virgin prior to that encounter. She described the episode as Arough sex.* Barker said defendant was mean to her afterward and told her she Awasn=t any good.* Nonetheless, defendant later asked her to meet him at Camp Pendleton, where he was stationed. When she arrived, defendant was there with two of his friends. He asked her to go into a bedroom, where he had placed a blanket on the floor. He then forced her down on the floor, removed her tampon, and forced her to have sex against her will. Barker related that she cried throughout the attack. After defendant was finished, he went back into the other room with his friends. He then referred to her as Awhite trash.* Barker said she reported the assault to the authorities at Camp Pendleton, but she did not pursue charges against defendant.
Kimberly Lille testified that she lived in defendant=s apartment building in May of 2001. Lille stated she woke up one night in May of 2001 and heard sounds coming from defendant=s apartment. Then she heard Afootsteps down the stairs* and Athumping, like chasing.* Lille got up to see what was going on. When she looked out the window, she saw Randi Morris, with whom defendant had a relationship, sitting in a car. Morris was crying and disheveled. Defendant was standing by the car, holding the door open.
Randi Morris testified that she dated defendant in May of 2001. The relationship lasted two weeks. Morris ended the brief relationship on May 26, 2001. Morris had consensual sex with defendant twice. During those encounters, defendant bit her on the neck, which left a Avery massive bruise,* and on her leg and under her buttocks, which also left a large bruise. On the evening of May 25, 2001, Morris went to defendant=s apartment, where a group of people had gathered. At one point in the evening, defendant and a female started wrestling. Defendant threw the woman down on his coffee table, breaking it. Defendant was also pulling the woman=s hair. Eventually, everyone left and she was alone with defendant. They engaged in foreplay. Morris stated she was naked, except for high heels. Defendant placed Morris on her stomach and positioned himself as if he were going to penetrate her anally. Morris told defendant she did not want to do that. Notwithstanding, defendant penetrated her anally. Morris stated she had previously told defendant unequivocally that she would not engage in anal sex. When defendant penetrated her, she experienced Aextreme pain* and was frightened because defendant was forcing himself on her. Morris screamed Ano* and kicked at defendant. Defendant responded by placing his hand over her mouth and shoving his fingers up so they covered her nose. Morris testified she could not breathe. When Morris opened her mouth, defendant got his finger into her mouth, and Morris bit him, trying to get him to stop. Morris said she was yelling at defendant to get off of her. Defendant grabbed her head and forcefully turned it as far as he could to the right. Morris heard her neck cracking. She stated, AIt was like he was trying to break my neck.* Morris screamed, and defendant quickly turned her head the other way forcefully. Morris heard her neck crack again. She testified, AAnd IBall I could think of was praying so hard, Lord, please don=t let me die this way, he=s trying to kill me. I knew he was trying to kill me. I mean, he was trying to break my neck.* Morris eventually turned on her back and pleaded with defendant not to kill her. He then relaxed his hold on her. Morris testified, A[A]ll I could think of was to get out of there because he had tried to kill me and I just wanted to get out of there and get safe.*
She tried to be nice to defendant, making excuses that she had to go to work early, but defendant told her, AYou=re not going anywhere.* Morris told defendant she had to go to the bathroom. While she was inside, defendant stood outside the bathroom door. Morris determined that the bathroom window was too small for her to escape through it, and she realized that defendant=s apartment was on the second floor anyway, so she wiped the blood from her anus, came out of the bathroom, and got dressed. Defendant still insisted that Morris could not leave, so Morris sat down in a chair. Defendant then grabbed her by the legs, pulled her onto the floor, and again tried to have sex with her. When she resisted, he finally gave up. Morris kept insisting that she had to go. Defendant then said he had to go to the bathroom, and he grabbed Morris by the wrist and made her go into the bathroom with him. When he finished, he asked Morris to lie down with him and sleep.
Morris waited until defendant was asleep, then she jumped up and opened the door. Defendant woke up and tried to stop her from leaving, but she eluded him and ran down the steps to the front door, with defendant in pursuit. Morris got in her car and tried to shut the door, but defendant prevented her from doing so. He tried, unsuccessfully, to take her keys, then he reclined her seat and tried to get on top of her. Eventually, Morris succeeded in raising the seat, closing the door, and starting the car. Defendant jumped into the back seat, and then crawled into the front passenger seat. He said he was sorry, that he could not remember what he had done. He refused to get out of the car, so Morris drove to her apartment with defendant in the vehicle. When she arrived at her apartment building, defendant followed Morris to her apartment and forced his way inside. He laid down on her bed and pulled her down beside him. She waited until defendant fell asleep, then she left for work. Defendant was gone when she returned.
Morris stated she was very sore after the incident. Her anus was painful from the sexual assault, and her back and neck hurt as if she had been in a car accident. She did not contact the police because she was afraid they would not believe her and she felt humiliated. After defendant was arrested for McNamara=s murder, Morris contacted the police and told them what had happened to her. Following the sexual assault, Morris saw defendant at social gatherings, but she made sure she was never alone with him again.
Morris said defendant told her the Marines taught him to kill without remorse. At the time, Morris thought the comment odd, and she was not sure what defendant meant. Morris noticed that defendant had books about Hitler and Nazism. Defendant possessed books entitled, APipe and Fire Bomb Designs,* AThe Anarchist=s Cookbook,* ASS: Blood Soaked Soil,* AHitler=s Enforcers,* AMein Kampf,* as well as Marine Corp training manuals. Defendant told Morris he respected Hitler for trying to Apurify his race.*
The State next called Keri Guillory. Guillory knew defendant through her boyfriend, Brad Adams. Adams had been in the Marines with defendant. Adams resided with Guillory in Louisiana, and defendant would come to visit during the Christmas holidays. When he did, defendant stayed at Guillory=s residence. On his second visit, defendant brought his girlfriend, Tara Hofer. Guillory said that defendant treated Hofer badly and would talk down to everyone. When he got drunk, he got mean. She did not want him to come back after his second visit.
When he returned for Christmas of 2000, defendant was drunk every day. Defendant kidney punched her twice in a bar. Circumstances dictated that she take him to a family friend=s home while Adams was at work. Guillory testified, A[The] next thing you know he is whispering in my sister=s ear.* Guillory=s sister was 15 or 16 years old at the time. Guillory testified she had to pull defendant away from her sister. Later, defendant put his hand on the inner thigh of an older woman of the household. When she got up, defendant spilled his drink on the carpet.
When Guillory got defendant back to her house, defendant fell going into the house and bloodied his eye. Guillory tried to attend to his eye, and defendant began screaming at her. Defendant shouted, ADon=t you know how much Brad loves you,* and he pushed her away. Guillory tried to get out of the house, but defendant tackled her and forced her to the kitchen floor. Guillory testified defendant put her in Asome kind of a hold.* He put his fist in her mouth and, in doing so, scratched her mouth and face. Her gums were torn and the back of her throat was scratched and raw. Guillory escaped from defendant when her dog distracted him. She ran out the door and called the police from a neighbor=s house. The police arrived, as did Adams. Defendant was arrested, but Guillory dropped charges at Adams= request and upon his assurance that she would never have to see defendant again.
The State presented testimony that defendant=s computer was seized, pursuant to a search warrant, on the day of his arrest for the McNamara murder. Computer data analysis revealed that defendant had logged off his computer at 3:29 a.m. on June 12, 2001, the morning of Shannon McNamara=s murder. Defendant=s Yahoo identification name was ACereal Kilr 2000.*
On defendant=s computer, an Illinois State Police analyst found images of adult females posing nude or involved in sexual activity. Some images depicted adult females engaged in sexual activity with a dog and a horse. There were also images of nude children and sexually explicit cartoons. On June 11, 2000, someone accessed information on date rape. On June 11, 2001, someone went to a website and read articles about Timothy McVeigh=s trial and activities, and examined articles pertaining to the manufacture of methamphetamine.
Sergeant Kevin Paddock of the Charleston police department testified that he executed a search warrant at defendant=s apartment and observed various books defendant possessed. Paddock stated that defendant had books entitled, APipe and Fire Bomb Designs,* AThe Anarchist=s Cookbook,* ASS: Blood Soaked Soil,* AHitler=s Enforcers,* AMein Kampf,* as well as Marine Corps training manuals.Paddock was also involved in the investigation of the murder of Amy Warner in Charleston on June 29, 1999. Warner was found dead in her apartment, her throat slashed, her children in an adjacent bedroom. At the time of the murder, defendant lived less than a mile from Warner=s house.
Joe Siefferman, a field supervisor for the Illinois State Police, testified as an expert in crime scene reconstruction. Siefferman was involved in both the McNamara murder investigation and the investigation of the Warner homicide two years earlier. Siefferman described the scene of the Warner murder and identified photographs depicting the crime scene. Siefferman noted that Warner was found lying partially on her couch and partially off. Her feet and torso were on the couch; her head was off the couch on a cushion on the floor. Her arms were outstretched above her head. She was wearing a pink T-shirt, but was otherwise naked. She had what Siefferman described as a Avery large cut on her throat* that resulted in a significant loss of blood. Indeed, photographs show that Warner=s throat had been slashed from one side to the other. Warner had defensive wounds on her left hand. The physical evidence indicated that Warner was positioned face down when her throat was cut. Her body was turned over after her throat had been cut so that her wounds and the front of her body would be exposed. In Siefferman=s opinion, Warner=s injuries were intentionally exposed for effect.
Siefferman noted several similarities between the Warner and McNamara murders. First, both victims appear to have been posed. In each instance, photographs reveal a victim lying on her back with her arms extended above her head. In each instance, the victim was naked from the waist down. Both were attacked in their sleep. Both victims sustained injuries from sharp objects. In neither instance, were identifiable fingerprints found.
On cross-examination, Siefferman acknowledged that McNamara died from strangulation and suffocation, whereas Warner was killed by slashing her throat. He also acknowledged that the wash cloth found near Warner=s body may have gotten there when her four-year-old daughter attempted to wipe the blood off of her mother and wake her up.
Mike Nichols, the coroner of Coles County, testified that Warner died of Amassive blood loss* as a result of a Amassive incise wound* of the neck. Autopsy results indicated there were recent contusions to the victim=s vagina, which, the autopsy report concluded, may have been the result of nonconsensual vaginal penetration.
Patrick Callaghan testified that he was previously employed with the Illinois State Police and had been involved in both the McNamara and Warner murder investigations. He noted similarities in the two murders and began looking for connections between defendant and Amy Warner. He first learned that Doug Paul had indicated defendant had admitted murdering Warner. Investigators then learned from Patricia Winborn that defendant had been in Warner=s house approximately two weeks before the murder. Tara Hofer was interviewed and told investigators she had to go to bed early on the night of the murder and defendant had stayed up late. She said she remembered the date because Warner=s children went to the day-care facility where she worked and the murder was Aall of the talk the next day.* Callaghan testified, when he interviewed Hofer in August of 2001, Hofer told him she would love defendant even if he had murdered McNamara and Warner.
James Wright was called by the State to testify as an expert in the field of crime scene investigation. Wright stated that he was employed by Threat Assessment Group as a consultant on violent crime. He had previously worked 30 years for the Federal Bureau of Investigation (FBI), and of that, 25 years as a special agent. Wright testified he had investigated homicides, rapes and arsons. As part of his duties, Wright reviewed crime scene and autopsy photos, reviewed police reports, and interviewed witnesses. He interviewed admitted murderers and rapists, and he consulted with experts in the fields of psychiatry, psychology, and medicine. At one point in his career, he was transferred to the behavioral science unit of the FBI. While there, he began a research project pertaining to serial rapists. As a part of that project, Wright conducted interviews of serial rapists in sessions lasting from 8 to 16 hours. The in-depth interviews focused upon the subjects= social histories and behaviors. After the interviews, he and other researchers reviewed the subjects= records to corroborate information they had gathered. Wright testified he had been with Threat Assessment Group for 42 years. During that period, he had been called upon for consultation in murder cases.
In the instant case, Wright was asked to review autopsy photos, crime scene photos, police reports, and witness statements, pertaining to the murders of Shannon McNamara and Amy Warner. With respect to the apartment building fire, Wright was provided with police reports, photos, and reports of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Charleston fire department. Wright was asked to make comparisons and look for similarities in the two murders and the arson. Wright was also provided with a criminal history of defendant, a record of his contacts with police, as well as his military and educational records.
Wright said what he does is not a science. Rather, it is assessment and analysis based solely on years of training and experience. The State tendered Wright as an Aexpert in the area of criminal investigation, particularly with regard to crime scenes.*
Under cross-examination, Wright stated he had been initially asked in this case to compare the crimes and say Awhatever [he] could about the individual that committed the three crimes or if they could possibly be connected.* Wright was later requested to evaluate the crimes, evaluate defendant, and render his opinion as to whether defendant was responsible. Wright testified there were approximately 25 or 26 doctors, psychiatrists, and psychologists who work with his company as consultants on their cases.
At the conclusion of defense counsel=s questioning, counsel objected to Wright being qualified to testify as an expert. The trial court overruled defendant=s objection, and the State proceeded with direct examination.
Wright testified that crimes can be categorized as Aorganized* or Adisorganized.* In an organized crime there is evidence of preplanning, such as selecting a target and bringing a weapon. In a disorganized crime there is no indication of preplanning, and the crime scene Alooks a lot sloppier.* Wright stated that a crime might start out organized and become disorganized if the perpetrator meets unexpected resistance or is interrupted.
Wright characterized the McNamara murder as a Amixed crime scene.* There was evidence of organization and preplanning in that latex gloves were used to keep from leaving fingerprints, and there was reason to believe an effort was initially made to enter the apartment by Aslipping* the door lock with a credit card that was found at the scene. When that plan was thwarted by a deadbolt, an alternative plan was utilized, i.e., cutting the window screen with a box cutter to gain entry. Wright believed that was a sign of a fairly organized person who, when confronted with something unexpected, can recover and alter the original plan or use an alternate plan. Moreover, there was evidence that defendant had been watching the people who lived in that apartment, which was, again, a sign of preplanning and organization.
However, when defendant encountered unexpected resistance, the crime became disorganized, and defendant left evidence behind. Wright testified there were Aindications of anger* in the commission of the offense, particularly, Athe probable stomping [of] the body to lacerate the liver.* Defense counsel objected on the ground that Wright had Ano psychological training or background* to make Athose kind of assessments.* The court overruled the objection, and Wright continued:
A[A]nger can be *** caused by a lot of different things. But
certainly somebody resisting robs somebody of control and tends to
make people who like to have control very angry at the person that
takes that control from them.*
Wright testified it appeared defendant regained his composure after the struggle was over. He disposed of the murder weapon in a dumpster and was later seen putting a handgun in the ceiling of a janitor=s closet in the gymnasium where he worked.
Wright noted that the Warner murder appeared to have been much more organized. There was a lesser degree of resistance. Warner was apparently caught totally by surprise and quickly overwhelmed. Wright noted there were wounds to the neck of both victims. Similarly, Wright observed, reports from other young women who had violent encounters with defendant indicated the throat had been a point of attack. Wright pointed out another similarity between the McNamara and Warner murder scenes: in each instance, the victim=s arms were extended over her head.
Speaking of the attributes of arsonists, Wright noted that studies indicate arsonists experience a Asense of power and control* in setting a fire, particularly a large fire. Wright observed that, in defendant=s interaction with police, he was commonly uncooperative, belligerent and combative. Wright stated defendant=s history of activities with law enforcement officers demonstrated a lack of respect for authority.
Wright also commented on the newspaper article on the Warner murder that defendant had posted in his apartment. Wright went on to testify that serial killers and serial rapists tend to keep articles about the crimes they commit.
Wright testified, over objection, that defendant=s history showed a lot of anger toward women. He stated his belief that past behavior is the best indicator of future behavior.
Wright noted that the consumption of alcohol was often a factor when defendant engaged in inappropriate behavior; however, his violent and aggressive conduct continued even after he was incarcerated. Moreover, Wright noted both the McNamara and Warner murders exhibited preplanning. The preplanning of the McNamara murder in particular shows that ...