Appeal from the Circuit Court of Cook County No. 04 CR 17014 Honorable Thomas V. Gainer, Jr.,Judge Presiding.
The opinion of the court was delivered by: Justice Sterba
JUSTICE STERBA*fn1 delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.*fn2
Following a jury trial, defendant Lamar Wilmington was convicted of the first degree murder of Guan McWilliams and of concealing that homicidal death. Wilmington was sentenced to consecutive terms of 50 years and 5 years in prison, respectively, for those crimes. On appeal, Wilmington contends that he was denied a fair trial for two reasons: (1) the circuit court did not ascertain that Wilmington consented to his counsel's tendering of a jury instruction on second degree murder; and (2) the circuit court did not fully comply with the voir dire requirements of Illinois Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)). Because the circuit court's admonitions to potential jurors did not comply with Rule 431(b), this court reversed Wilmington's convictions and sentences and remanded for a new trial in an opinion filed September 24, 2009 (People v. Wilmington, 394 Ill. App. 3d 567 (2009)). On January 26, 2011, the Illinois Supreme Court issued a supervisory order directing this court to vacate its judgment and reconsider in light of People v. Thompson, 238 Ill. 2d 598 (2010). People v. Wilmington, 239 Ill. 2d 588 (2011) (table). For the reasons that follow, we affirm Wilmington's convictions and sentences.
On March 4, 2004, McWilliams' body was found in a garbage can at 7446 South Eberhart in Chicago. An autopsy revealed that McWilliams had been shot twice in the top of the head. About a week later, Wilmington went to the Third District police station and stated that he had information about a person who was killed in the vicinity of 74th Street and Eberhart. He told a detective that he was at a party and overheard a person known as "Dollar" say that he killed a man who was gay and threw him in the garbage. Police interviewed Dollar and eliminated him as a suspect.
On June 14, 2004, Wilmington returned to the police station and reported that his head had been grazed by a bullet. After investigating that complaint, Detective Gerald Hamilton advised Wilmington of his Miranda rights. He subsequently informed Wilmington that he had questioned Dollar and had eliminated him as a suspect in McWilliams' death. Hamilton testified that upon hearing this information, Wilmington appeared visibly shaken and told him that he had lied about Dollar. He then made some additional statements to the police and subsequently consented to a search of his apartment. Wilmington accompanied the officers to his residence at 7318 South Eberhart and showed them the basement room where he told them McWilliams had been shot. Wilmington informed the officers that the condition of the room had changed since the night of the murder. Drywall had been put in, a rug was put down on the concrete floor, and some additional furniture had been placed inside.
Assistant State's Attorney George Canellis testified that he went to the police station on June 16, 2004, and interviewed Wilmington. Canellis advised Wilmington of his Miranda rights and Wilmington indicated that he understood and stated that he wished to speak with Canellis. When asked how he wished to memorialize his statement, Wilmington indicated that he wanted it to be handwritten. He said that he did not want the statement to be videotaped because he did not want anyone to see him talking about having "gay sex." Wilmington told Canellis that he and McWilliams met at a bar in 2003 and had sex later that same night. After their initial encounter, they occasionally had sex when McWilliams would call and initiate a meeting. Wilmington said that he was a member of the Black Disciples street gang and that nobody knew about his sexual orientation, including his family, friends, people in the neighborhood, and fellow gang members. Wilmington told Canellis that the Black Disciples did not like people who were gay or who had "gay sex."
Wilmington said that on March 3, 2004, McWilliams called him and asked for $200. Wilmington said he had no money, but told McWilliams to come to his residence anyway. Wilmington rented a basement room and other people lived in the residence, but nobody else was home at that time. After they had sex, McWilliams again asked for money and they began to argue. McWilliams said he had AIDS and threatened to tell police Wilmington had raped him. McWilliams pulled out a gun, but Wilmington was able to take it away from him because Wilmington was bigger and stronger. They continued to argue, and Wilmington became angry and called McWilliams a "little bitch." McWilliams threatened to tell people in the neighborhood that they were having sex. Wilmington told Canellis he did not want anyone to know that he had sex with McWilliams because that was his personal business and if people in the neighborhood knew, they would make fun of him and give him a hard time.
While Wilmington held the gun, McWilliams, who Wilmington said was naked and unarmed, ran at him. Wilmington said he fired about four shots, striking McWilliams in the top of the head because McWilliams was hunched over when he ran at Wilmington. McWilliams fell to the floor, bleeding, and Wilmington said he looked like he was dead. Wilmington said that he put underwear and a shirt on McWilliams, dragged the body outside, and left it on a sidewalk in the back of the residence while he went to get help from a fellow gang member named Ramsey. Wilmington told Ramsey that a drug deal had gone bad and he killed McWilliams by mistake. He said that Ramsey came back to the house with him and told him to put the body in a garbage can. Wilmington got a neighbor's garbage can, picked up McWilliams' body and threw it into the can, and then he and Ramsey wheeled the can about a block away and left it there. Wilmington used bleach to clean the floor, threw out the shell casings and the rest of McWilliams' clothes, and gave the gun to another fellow gang member.
Wilmington told Canellis that he had originally implicated Dollar because he and Dollar had fought over a girl. He told Canellis that when he went to the police station to report the incident where a bullet grazed his head, he also talked to the police about McWilliams' murder. Wilmington said that, because he was scared, he told police at that time that Ramsey had killed McWilliams. He then said that the reason he told Canellis the truth in his statement was because he wanted to clear his conscience. Upon completion of the statement, Canellis told Wilmington he was going to review it with him. However, after they got through the Miranda warnings on the first page, Wilmington said that he had changed his mind and refused to sign the statement. He did agree to sign a Polaroid photograph of himself taken by Canellis at the time of the interview.
Both sides stipulated that a red substance that was collected on cotton swabs from the wall and the floor of Wilmington's bedroom was not blood and that samples collected from McWilliams' fingernails only matched McWilliams' DNA profile. The forensic investigator testified that he did not find any bullet holes in the walls in Wilmington's bedroom or in the area just outside his room. Testimony established that articles of clothing that were found on the body included a tee-shirt, boxer shorts, a shirt, a sweatshirt, jeans, socks, and a nylon cap known as a "do-rag."
The parties stipulated that, according to the records of the department of streets and sanitation, the garbage can in which McWilliams' body was found was assigned to 7319 South Vernon. Officer Carol Parker testified that she went to that address and discovered that it was a vacant building without any garbage cans. She confirmed that 7318 South Eberhart and 7319 South Vernon share the same alley. A fingerprint examiner with the Illinois State Police crime lab testified that the garbage can did not contain any suitable latent fingerprint impressions.
Dr. Nancy Jones, the medical examiner, testified that the first bullet entered the top of the head and followed a downward path through the skull and into the brain, moving from the back of the body toward the front and lodging in the center of the head. The second bullet also entered the top of the head, went through the scalp and skull, and then went straight down into the head. Dr. Jones found no evidence of close-range shooting, which would generally be found where the weapon was between 18 to 24 inches from the body at the time it was fired. She did not take any rectal or mouth swabs and did not see any apparent semen. Dr. Jones testified that she also found blunt trauma injuries consisting of large abrasions or scratches and some bruising on the back that occurred around the time of death. She stated that some of the abrasions were consistent with McWilliams' body being dragged on the sidewalk after he had been shot, and the bruises were consistent with his body being dropped on the sidewalk after the shooting. Dr. Jones testified that McWilliams' blood alcohol level was twice the legal limit and there was also a small amount of cocaine, which would mean it had been ingested relatively close to the time of death or it would have metabolized into benzoylecgonine.
For the defense, Dr. Robert Hanlon, a clinical neuropsychologist, testified that Wilmington had mild mental retardation with an IQ of 67 and read at a first-grade level.
Wilmington also had a chronic seizure disorder that was documented back to 1998. Dr. Hanlon testified that being involved in an argument over a weapon, shooting someone, and moving and secreting a body would have been a stressful situation and it was unlikely that Wilmington could have committed such a crime without suffering a seizure, although the State's version of events was "certainly possible."
In rebuttal, the State called Alesia Hines, a paramedic with Cermak Health Services. Hines testified that she questioned Wilmington about the date of his last seizure, and he told her that his last seizure had been in 1995. The State also called Dr. Dawna Gutzmann, a staff psychiatrist with Forensic Clinical Services, who interviewed Wilmington several times. Wilmington told her that he had a seizure in 2002 and then starting having seizures frequently in the year leading up to his arrest. Dr. Gutzmann noted that there was some evidence of malingering, i.e., when a person fakes or exaggerates a symptom of a psychological or medical illness for secondary gain. Wilmington reported to another doctor that he was having seizures in the courtroom and that he would sometimes have none for a month, but then would have three or four in a day. Dr. Gutzmann stated that in her opinion, Wilmington had no mental or physical disorder that would affect his ability to commit the alleged offense.
At defense counsel's request, the circuit court instructed the jury on second degree murder. During the deliberation process, the jury sent three notes, collectively containing two questions and three requests for exhibits, out to the judge. The jury asked for the transcript of Canellis' testimony, the felony review folder exhibit, and the statement Canellis took from Wilmington. The jury also asked whether there was a summary sheet for all of the exhibits, and whether it was allowed to see defense exhibits or just the State's exhibits. The final note was sent out approximately 2 hours and 40 minutes after the start of deliberations. The jury returned a verdict of guilty of first degree murder and of the concealment of a homicidal death. The circuit court sentenced Wilmington to consecutive sentences of 50 years and 5 years in prison, respectively, for those crimes. Wilmington timely filed this appeal.
On September 24, 2009, this court reversed Wilmington's convictions and sentences and remanded for a new trial (People v. Wilmington, 394 Ill. App. 3d 567 (2009)). On January 26, 2011, the Illinois Supreme Court issued a supervisory order directing this court to vacate its judgment and reconsider in light of People v. Thompson, 238 Ill. 2d 598 (2010), to determine whether a different result is warranted. People v. Wilmington, 239 Ill. 2d 588 (2011) (table). On March ...