Appeal from Circuit Court of Sangamon County No. 06CF518 Honorable Peter C. Cavanagh, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Pope and Cook concurred in the judgment and opinion.
¶ 1 In May 2010, a jury convicted defendant, David D. Brunner, of four counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2006)), robbery (720 ILCS 5/18-1(a) (West 2006)), and possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West 2006)).
¶ 2 Following an August 2010 hearing, the trial court merged defendant's first degree murder convictions and sentenced him to the following concurrent prison sentences: 55 years for first degree murder, 6 years for robbery, and 6 years for possession of a stolen vehicle.
¶ 3 Defendant appeals, arguing only that the trial court's imposition of a 55-year prison sentence was excessive. Specifically, defendant contends that the court abused its discretion by imposing that sentence because (1) the evidence did not show that defendant personally killed the victim and (2) defendant "was abused and unwanted as a child and has had substantial and long-standing mental illnesses." We disagree and affirm.
¶ 5 A. The State's Charges
¶ 6 Shortly after the police discovered Judy Schermerhorn's strangled body in her home in April 2006, the State charged defendant as follows: (1) first degree murder in that defendant intended to kill Schermerhorn (720 ILCS 5/9-1(a)(1) (West 2006)) (count I); (2) first degree murder in that defendant knew that his acts would cause her death (720 ILCS 5/9-1(a)(1) (West 2006)) (count II); first degree murder in that defendant knew that his acts created a strong probability of her death (720 ILCS 5/9-1(a)(2) (West 2006)) (count III); (4) first degree murder in that while committing a forcible felony (robbery), defendant caused her death (720 ILCS 5/9-1(a)(3) (West 2006)) (count IV); (5) robbery (720 ILCS 5/18-1(a) (West 2006)) (count V); and (6) possession of a stolen vehicle (625 ILCS 5/4-103(a)(1) (West 2006)) (count VI).
¶ 8 Because defendant is not challenging the sufficiency of the evidence to sustain his convictions following his May 2010 jury trial, the facts relevant to this appeal are as follows.
¶ 9 1. The Evidence Presented by the State
¶ 10 Megan Wanless testified that she was introduced to defendant in the early morning hours of April 29, 2006, by defendant's cousin, Terry Fairclough. Because defendant had crack cocaine and cannabis, Wanless decided to "hang out" and "party" with him. Several hours after driving to a lake to consume drugs, defendant drove to a local pawnshop where he sold silver flatware that he retrieved from the car's trunk. Thereafter, defendant drove to a home. While in the driveway of that home, defendant told Wanless that two days earlier, he had an argument with the owner of the home that ended when he strangled her to death. (Wanless later identified an exhibit that depicted Schermerhorn's home as the home she visited.)
¶ 11 Wanless entered the home with defendant, explaining that she did not believe defendant's story. Once inside, defendant searched for money and jewelry. Wanless followed defendant into a bedroom and noticed a lump on the bed that she believed was a pile of blankets. Defendant eventually found $30 in a checkbook. Defendant then drove Wanless to a motel where he rented a room, and they consumed drugs. The next morning, defendant returned to the home. As she sat in the car, Wanless later observed defendant leave the home, carrying jewelry and "egg-shaped" ornaments. After selling jewelry to a pawnshop, defendant drove Wanless to her friend's home. After a short time there, defendant became upset because Wanless would not show him the drugs she had received. As defendant left the home without Wanless, he backed the rear end of the car into a pole, shifted the car into drive, and hit a stop sign and a fence.
¶ 12 Police responded to a dispatch regarding defendant's accident, and upon arriving, observed defendant-who appeared unconscious-in the driver's seat. A preliminary investigation revealed that the car defendant had been driving was registered to Schermerhorn but displayed stolen license plates. As police continued their investigation, defendant exited the car and fled, but police quickly apprehended him. Paramedics later transported defendant to a hospital.
¶ 13 Wanless gave the police defendant's driver's license, explaining that she had it because defendant kept losing it during the two days she was with him. Wanless then asked if she could retrieve her possessions from the car. When an officer opened the car's trunk to retrieve Megan's poncho, he found two bags of jewelry, flatware, figurines, and Schermerhorn's driver's license. Concerned that Schermerhorn may have been burglarized, officers drove to the address on Schermerhorn's license. After their knocks at the front door went unanswered, officers entered the home through an unlocked window and found Schermerhorn's decomposing body on a bedroom mattress wrapped tightly in blankets. After an officer removed a portion of the blankets, he testified that Schermerhorn's head was wrapped in a plastic bag as if she was wearing a shower cap and that she had been gagged.
¶ 14 A forensic pathologist testified that (1) Schermerhorn's hands and feet were separately bound by cloth material; (2) an electrical cord and cloth material were wrapped around her neck; (3) she was gagged by a piece of cloth that wrapped around her face, ending in a knot located at the back of her head; and (4) her entire body was wrapped in layers of blankets and bedding secured by electrical cords and a sash. The pathologist opined that Schermerhorn's death was caused by "ligature strangulation," with the possibility that the plastic bag placed over her head had contributed to her death by depriving her of oxygen.
¶ 15 The State elicited testimony from several witnesses that corroborated Wanless' testimony, and showed that on April 28, 2006, defendant sold Fairclough a computer in exchange for drugs. The State's evidence also revealed that the computer defendant sold belonged to Schermerhorn, and a deoxyribonucleic acid (DNA) analysis could not exclude defendant as the contributor of DNA recovered from a sash used to secure a blanket to Schermerhorn's torso.
¶ 16 Thereafter, the trial court admitted three digital recordings of interviews police conducted with defendant. In those interviews, defendant provided the police with differing explanations regarding Schermerhorn's death, and he did so in the following order: (1) Schermerhorn had received threats from a man she hired who eventually stole her prescription pills; (2) during late-April 2006, defendant often stopped by Schermerhorn's home and each time that she was not there, he would steal her belongings-including a computer-to support his drug habit; (3) defendant and his friend, "Lorenzo," devised a plan to rob Schermerhorn to cover his drug debts, which resulted in her unintentional death; and (4) defendant strangled Schermerhorn and tied her up because she threatened to use her organized-crime connections to harm his former girlfriend. (The digital recordings were played for the jury.)
¶ 17 2. The Evidence Presented by Defendant
¶ 18 Defendant testified that he met Schermerhorn in February 2006 through his former girlfriend, who cleaned Schermerhorn's home. Schermerhorn worked from home, selling cosmetic products, and planned to sell jewelry over the Internet. Over the next two months, defendant became friends with Schermerhorn, assisting her by performing landscaping and home maintenance jobs. On April 27, 2006, Schermerhorn told defendant that a large amount of her jewelry was missing. Defendant admitted to her that he took the jewelry. To make amends, defendant stated that he entered into an agreement with Schermerhorn to defraud her homeowner's insurance provider by claiming that she had been robbed. Before defendant left Schermerhorn's home to return a van he borrowed from his cousin, Joey Brunner, she insisted that he return that night so that they could finalize their plans.
¶ 19 After smoking crack cocaine with Joey, defendant and Joey returned to Schermerhorn's home where they finalized a plan to tie Schermerhorn up, ransack her home, and anonymously report the burglary to the police. Defendant would then sell the stolen items out of state and provide Schermerhorn a portion of the proceeds to financially support her until her insurance check arrived. Defendant stated that after Schermerhorn agreed with the plan, he started rummaging through her home while Joey tied her up. A short time later, defendant informed Schermerhorn that they were leaving and she responded with a "muffled" sound.
¶ 20 Defendant recounted that as he drove away, Joey "flipped out" unexpectedly, and begged him to forget about reporting the robbery because Joey thought he may have killed Schermerhorn when he tied her up. Instead of calling 9-1-1, defendant drove Joey back to his home, returned to check on Schermerhorn, and confirmed that she was dead. Defendant then wrapped Schermerhorn's body in blankets to prevent her dog from "feeding" on her body.
¶ 21 Defendant explained that initially, he did not want to implicate Joey because he was "family" but after "sobering up" and "realizing exactly what just happened," he decided that "it's not fair to [Schermerhorn], to have who really killed her runnin[g] around." Defendant also (1) claimed that his videotaped explanations were lies and (2) acknowledged that he continued stealing from Schermerhorn's home after her death.
¶ 22 3. The Trial Court's Instruction to the Jury on Accountability
¶ 23 In addition to the jury instructions the trial court provided regarding the propositions the State was mandated to prove beyond a reasonable doubt to sustain guilty verdicts on the counts charged, the court also instructed the jury on Illinois Pattern Jury Instructions, Criminal, No. 5.03A (4th ed. 2000), entitled, "Accountability-Felony Murder." Specifically, the court informed the jury as follows:
"To sustain the charge of first degree murder, it is not necessary for the State to show that it was or may have been the original intent of the defendant or one for whose conduct he is legally responsible to kill the deceased, *** Schermerhorn.
It is sufficient if the jury believes from the evidence beyond a reasonable doubt that the defendant or one for whose conduct he is legally responsible, combined to do an unlawful act, such as to commit Robbery, and that the deceased was killed by one of the parties committing that unlawful act."
¶ 24 4. The Jury's Verdict
¶ 25 On this evidence, the jury returned guilty verdicts on all six counts.
¶ 26 C. Defendant's Sentencing Hearing
¶ 27 1. The Evidence Presented ...