Michael J. Pelletier, Alan D. Goldberg, and Rachel Moran, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Jeffrey W. Allen, Christine Cook, and Ranjit S. Hatti, Assistant State's Attorneys, of counsel), for the People.
[374 Ill.Dec. 775] OPINION
¶ 1 Following a jury trial, defendant Gregory James was found guilty of first degree murder. The trial court sentenced him to 33 years' imprisonment. Defendant appeals, arguing that the trial court abused its discretion in limiting defense [374 Ill.Dec. 776]
counsel's cross-examination of the codefendant, Lee Stapleton. We affirm.
¶ 2 The State asserted at defendant's 2011 jury trial that, on the night of October 21, 2003, defendant and Stapleton went to collect a drug debt from Cynthia Hayden at the house of the victim, Edward Mikutis, in Berwyn, Illinois. Finding only the victim at home, they murdered him and took his property. On the other hand, the defense asserted that Hayden was indebted to many drug dealers and had been stealing collectable coins from the victim, and that Stapleton was solely responsible for killing the victim.
¶ 3 The trial evidence indicated that the victim worked at a newsstand and lived on South Ridgeland Avenue in Berwyn, Illinois. He collected coins and sports trading cards as a hobby. In 2003, the victim began dating Hayden, who was unemployed and receiving social security disability. Hayden admitted that she was using crack cocaine several times per week in 2003. Her nickname for the victim was " the Boss." She knew that he collected coins and trading cards, but she denied taking these from the victim to pay for drugs. She testified that the victim " bought the majority of the drugs," but she denied using him to support her drug habit.
¶ 4 She also knew defendant, or " Larry," because he supplied rock cocaine, and she saw him two or three times per week. Through defendant, she knew someone named " Capone" ; she would see them together and they had been to the victim's house on prior occasions.
¶ 5 Hayden testified that on October 21, 2003, she owed defendant $125 for an " eight ball" of rock cocaine; she told defendant that she would pay him at 6 p.m. She indicated that she was at the apartment of her friend and fellow cocaine user, Mariam Jovanovic. Around that time, Hayden saw defendant in the alley near the apartment. Defendant told her, " Time's up." Hayden responded that she still had 15 minutes and walked away.
¶ 6 Hayden went to the newsstand where the victim was working and spoke with him. Hayden testified that the victim was smoking rock cocaine at the newsstand and at some point he dropped some drugs and was searching for them on the ground; she believed that he was addicted to cocaine. She thought she saw a large knife or a sword behind the magazines; it was the first time she had seen it. She later returned to Jovanovic's apartment.
¶ 7 Hayden testified that at approximately 9 p.m., she spoke with defendant on the telephone and informed him that she did not have the money. He responded that " he was going to get-that I and my boss, we will pay for it." Defendant sounded " [v]ery angry, scary." Hayden stayed the night at Jovanovic's apartment, which she had never done before. Hayden claimed that she attempted to sell her son's baseball card that evening; she denied taking the card from the victim.
¶ 8 Early the next morning, Hayden went to the victim's house and used her key to enter through the back door. She found the victim unresponsive on the living room floor with duct tape around his face. She attempted to cut the tape around his wrists and called 911. Hayden testified that when the police arrived, she was trying to cut the tape from the victim's mouth so he could breathe, but the police told her [374 Ill.Dec. 777]
to put the knife down and go to the porch. The police subsequently took her to the police station; she testified that she went willingly.
¶ 9 Berwyn police officer Mark Schwanderlik responded to the victim's address at about 6 a.m. on October 22, 2003. He found the victim lying on his back in the living room, apparently deceased, with duct tape covering his face and wrapped around his head. The duct tape went from just above his chin to above his eyebrows, and his arms and feet were also bound with duct tape. In a laundry basket near the victim, there was a partially used roll of duct tape. The pockets of the victim's pants were turned inside out and appeared to be empty. The paramedics arrived shortly thereafter and confirmed that the victim was deceased and rigor mortis had set in.
¶ 10 Schwanderlik indicated that there were no signs of forced entry to the home, but it appeared as if there had been a struggle. The living room was in disarray, the couch cushions were placed in the bathtub, furniture was overturned, and items were strewn about. In the master bedroom, drawers were removed from the dresser and dumped upside down on the bed, and items were pulled out of the closet and thrown to the floor. A cabinet in the living or dining room had been opened and boxes and drawers had also been emptied onto the floor.
¶ 11 According to Hayden, at the police station, the police asked her to make a list of people who were upset with her or the victim. Hayden provided them with the name " Larry." She testified that she made a list of 5 to 10 names for the police, including her brother and an individual named Mike Keenan. She denied providing the name " Capone." At trial, Hayden testified that she was aware of other individuals in Berwyn who sold drugs besides defendant, but she owed money only to defendant, and she never bought drugs from Stapleton. Hayden denied telling the defense attorney before trial that she owed money to various people besides defendant. She denied that her brother, Keenan, or an individual called " Long-Haired Johnny" were drug dealers, or that she had told the defense attorney this prior to trial. Hayden also denied that she would lie, cheat, or steal to keep using crack cocaine. She admitted to pleading guilty to possession of a controlled substance in 2004, and kidnapping in 2007.
¶ 12 An autopsy of the victim indicated that he died from suffocation due to his face and mouth being bound tightly with duct tape, and two stab wounds to the victim's right abdominal side were significant contributing factors to his death. The duct tape covered both nostrils, mouth, left eye and ear, and partially covered his right eye and ear. Attached to the duct tape at the back of the victim's neck was a purple blouse, which was not part of the victim's clothing. The victim had hemorrhages in his eyes, lips, the muscles of his neck, and in his brain; a fractured Adam's apple; and a laceration on the right side of his forehead. The victim's blood tested negative for alcohol, opiates, cocaine, and metabolites of cocaine.
¶ 13 The same day the victim's body was discovered, October 22, 2003, Berwyn police sergeant Gerald Conoboy went to the apartment complex located on Grove Avenue, about one mile from the victim's house, to speak with Jovanovic, the apartment complex manager who also lived in the complex. Conoboy was looking for someone named " Larro" or " Larry." While speaking with Jovanovic, defendant knocked on the back door. Defendant was taken into custody based on an unrelated [374 Ill.Dec. 778]
pending drug investigation and the murder investigation.
¶ 14 The police also obtained and executed a search warrant for defendant's apartment that same day. The police recovered several pairs of shoes and some coin collections. There were two black sweatshirts floating in liquid in the bathtub. According to Berwyn police sergeant Michael Ochsner, he observed a ceremonial sword in the apartment, but he did not collect it because he did not think it was relevant to the case. At the time, he believed that the victim had suffered a gunshot wound. It was not until after the autopsy, which occurred after the search warrant was executed, that the police learned the victim had stab wounds. Ochsner indicated that a sword appeared in a photograph of the living room that was taken by police that day.
¶ 15 The Bellwood police department assisted Berwyn police in locating an individual nicknamed " Capone" and whose first name was Lee. Bellwood police found Stapleton on November 30, 2003, and he was transferred to the Berwyn police department.
¶ 16 On the same day, Assistant State's Attorney Maureen O'Brien and a detective interviewed Stapleton at the Berwyn police station. Stapleton agreed to speak with O'Brien and signed and initialed the notice of rights form. O'Brien testified that after Stapleton gave her some information, she asked whether he wanted to memorialize his statement, and Stapleton indicated that he did not want to be videotaped but he wanted her to write out his statement. She testified that after she finished writing the statement, she read each page to him and asked if he had any corrections; he made some corrections and then signed the bottom of each page and at the end of the statement. The statement indicated that Stapleton was giving the statement voluntarily and because it was the truth, and had read it and was allowed to make corrections. O'Brien testified that the police photographed Stapleton and they signed the photograph.
¶ 17 O'Brien read the November 30 statement aloud to the jury. The statement related that Stapleton knew defendant was a drug dealer and had gone with him to collect drug debts, he knew the victim from the newsstand and saw defendant deliver cocaine to him one time, and that he heard the victim was living " with a hype who was a drug customer" of defendant.
¶ 18 The statement gave an account of what occurred on October 21, 2003. Stapleton recounted that he was with defendant at defendant's apartment at 1927 Grove in Berwyn at 5:30 p.m., when defendant received a call from a " female hype" about money she owed defendant, and defendant was going to pick up the money " at the old man's house." At about 9:50 p.m., defendant used Stapleton's telephone to call " the female hype," and she told defendant that she had spent the money. In response, defendant " was out of control and mad" and he threatened, " if I don't get my money, I'm going to fuck you up." Defendant told Stapleton that he was going to get his money, and when Stapleton asked if he was " okay, like calmed down, and he said no, walk with him." The statement indicated that defendant was " very mad and upset about not getting [374 Ill.Dec. 779]
paid" for the drug debt, and they walked to the victim's house. Defendant knocked on the door and the victim answered. According to the statement, defendant asked the victim for " the hype," but she was not home, and the victim said they could wait for her inside.
¶ 19 Stapleton indicated that he sat in a chair in the front room while defendant went to the bathroom. The victim offered to pay defendant the next day because he did not have the money; Stapleton " thought it was a reasonable request" and " kind of worked out the arrangement for the old man to pay for the hype the next day when [defendant] came out of the bathroom." According to the statement, defendant " grabbed the old man with [his] right arm around the old man's neck. [Defendant] held the old man in a choke hold and produced a knife in his left hand. It was a pocketknife with a kind of wooden handle." Defendant threatened, " if you don't give me my money, I'm going to fuck you up." The victim responded that he did not have the money, and defendant and the victim " start[ed] tussling."
¶ 20 In the statement, Stapleton recounted that the victim tried to grab the knife, while defendant tried to push the victim over the table. The victim ended up on his back with defendant's " knee in his chest and [defendant] was on top of the old man." Defendant held " the old man's hands with his left hand and then stabbed the old man with his right hand in the side two times." The victim was shaken and stated, " oh, my God." Defendant told him to sit on the couch, and then to lie down. Defendant sat on the victim's stomach and grabbed some duct tape from a drawer while holding the knife in his hand, telling him, " if you move, I'm going to kill you." Defendant then taped the victim's legs at the ankle, told him to hold his arms up, and again threatened to kill him if he did not comply. The victim complied, and defendant then taped his wrists.
¶ 21 In the statement, Stapleton indicated that he told defendant, " what the fuck are you doing, we just came here to collect money. You didn't tell me you were going to do this shit." Defendant responded, " don't bail out on me or I'm going to shank you." According to the statement, defendant then taped the victim's mouth.
¶ 22 Stapleton then related that he searched the house to make sure no one else was there. When he returned to the living room, defendant " had taped the old man's entire head and face." The victim struggled and tried to roll off the couch, but defendant held him down and then laid on top of him. Stapleton's statement indicated that defendant then " grabbed the old man's head and squeezed it into [defendant's] chest to suffocate him. [Defendant] kept the old man's head into his chest for two minutes so the old man couldn't breathe. The old man's body was shaking and kicking" as defendant held his face to his chest. Finally, the victim kicked once more and defendant got off of him. Defendant " grabbed the old man's head into his chest one more time to make sure he was dead." Stapleton " told [defendant] he killed this man and that I was out of here." Stapleton left and returned to defendant's apartment; defendant arrived about 35 minutes later carrying a sword, a bag of coins, and a bag of jewelry. The change totaled about $25.
¶ 23 O'Brien testified that on December 1, 2003, she was at the police department interviewing defendant when an officer informed her that Stapleton wanted to speak with her again. Stapleton again initialed a waiver of rights form. O'Brien testified that Stapleton also wanted her to write out this statement. In the statement, Stapleton indicated that he had not spent the night at his house since the October 21 [374 Ill.Dec. 780]
incident and he was afraid of being arrested. Further, Stapleton related that during the incident, defendant told him to grab the victim so defendant could tape him, and Stapleton held the victim's shoulders while defendant taped the victim's ankles. Stapleton indicated that he then grabbed the victim's ankles because the victim was kicking and he held them while defendant taped the victim's hands. After giving this second statement, O'Brien reviewed it with him, and then Stapleton, O'Brien, and a detective signed it. O'Brien denied making any promises to Stapleton.
¶ 24 O'Brien also took a statement from defendant on December 1, 2003, with a detective present. She testified that she informed defendant of his rights, and he agreed to speak with her and he signed the waiver of rights form. O'Brien indicated that defendant did not want to videotape his statement, but he agreed to have O'Brien write it out. She later reviewed the statement with him, and he made many corrections, signed each page, and signed at the end of the statement. The police took a photograph of defendant, which they signed.
¶ 25 In the written statement, defendant indicated that he was 20 years of age, lived at 1929 B South Grove, Berwyn, Illinois, and sold cocaine. He met Hayden, " a hype, who's a crack head in Berwyn, Illinois," and she bought drugs from him many times. Sometimes she would tell him to pick up the money " from Ed, the guy at the newsstand and then Ed would pay me" ; defendant indicated that he knew that the victim was her boyfriend, and the victim called him by his nickname, " Larry" or " Larrow." She sometimes paid defendant in silver bullions or rare coins.
¶ 26 In the statement, defendant related that Hayden called him on October 21, 2003, " all day trying to get some credit, some drugs for free," and at 8:30 p.m., she told him to bring her seven bags, or one ounce, of cocaine. Defendant told her that this would cost $400, and she responded that she would " either pay me with [the victim's] Dick Butkus football card or she wanted credit." She told him to drop the drugs off at the victim's house and get the money from the victim.
¶ 27 The statement further related that at 10:30 p.m., defendant walked to the victim's house with Stapleton, whom he called " Capone." Defendant had been there many times before with Hayden. When the victim answered and stated that Hayden was not at home, they entered the house and Stapleton " started looking around and picked up a wallet and got $12." Defendant indicated that Stapleton went into the bathroom, and then came out and grabbed the victim around the neck, holding a folding knife, and told the victim that he knew he had money in the house. Defendant indicated that he was " feeding off of Capone" and that he " didn't walk all the way down there in Berwyn carrying drugs for nothing. Cindy had me come down there, and I wanted to get something for it. I started yelling at [the victim] where is the money." Defendant's statement recounted that Stapleton tightened his grip on the victim and defendant " knew he wasn't playing" and defendant started searching the house.
¶ 28 According to defendant's statement, Stapleton ordered the victim to sit down, and then Stapleton lay on top of him with the knife. At one point, the victim tried to " bolt to the door," so defendant blocked him. When the victim tried to punch defendant, defendant told the victim that " he didn't want to do this" to defendant, but the victim " kept coming at" defendant, so defendant put his hand on his throat. The victim struggled, and defendant " hit him with an open left hand across the left side of his face." Defendant called for Stapleton's
[374 Ill.Dec. 781] assistance because the victim " was way too strong" for defendant.
¶ 29 Defendant related that the victim continued to try to reach the door, and defendant smacked him in the face. Stapleton punched the victim a few times and had him sit on the couch. Stapleton asked the victim if he had any tape; they wanted to tape him to prevent his escape or from calling the police. Defendant indicated that " the tape was in the table. Capone called me over and told me he would show me how to tape him up." Further, Stapleton had the duct tape while defendant searched the house looking for money or valuables. Defendant indicated that the victim was still fighting Stapleton, so defendant " held [the victim's] legs while Capone taped them together. [The victim] then put his hands up so Capone taped them together. Capone taped [the victim's] mouth over and over. [The victim] was still trying to talk and mumble." According to the statement, the victim " mumbled, I can't breathe." Defendant indicated that he told Stapleton to remove the tape from the victim's nose, but Stapleton stated, " This is a home invasion. Dead man [ sic ] don't talk." Stapleton taped over the victim's head and entire face, and defendant watched the victim's body " in convulsions." Defendant also found a " big sword in a holder in a closet," which he gave to Stapleton. According to the statement, Stapleton then stabbed the victim in the side with the sword.
¶ 30 Defendant further indicated in his statement that he then left while Stapleton went through kitchen cabinets, made soapy water to wash the victim's face and fingernails, and removed the victim's shoes and put them in a bag. Stapleton put the things they found in the house in a bag, and they left the victim there. Defendant indicated that he knew the victim was dead because ...