Court of Appeals of Illinois, First District, Fourth Division
Defendant’s conviction for multiple counts of first degree murder in the robbery of a restaurant was upheld over his contentions that the trial court denied defendant a fair trial by allowing a witness to testify that he was a circuit court judge but had been an assistant State’s Attorney when he interviewed defendant and that he thought defendant’s confession was reliable, and by playing a videotape depicting the bodies of the restaurant’s employees being removed from a freezer, since the testimony about the reliability of defendant’s confession was not a surprise to the jury, and the probative value of the video outweighed any prejudicial effect.
Appeal from the Circuit Court of Cook County, No. 02-CR-15430 (01); the Hon. Vincent M. Gaughan, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Charles W. Hoffman, all of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Assistant State’s Attorney, of counsel), for the People.
Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.
¶ 1 Juan Luna and James Degorski were charged with multiple counts of first degree murder for the 1993 shooting deaths of seven employees of a Brown's Chicken restaurant in Palatine, Illinois. Following a severed jury trial, Degorski was convicted and sentenced to natural life imprisonment. He argues on appeal that he was denied a fair trial where (1) former Assistant State's Attorney Michael McHale testified that he was now a Cook County circuit court judge and that he believed defendant's confession was reliable, and (2) the trial court allowed the State to play a video depicting removal of several of the employees' bodies from a walk-in freezer. For the reasons that follow, we affirm.
¶ 2 BACKGROUND
¶ 3 On January 8, 1993, seven Brown's Chicken employees–Michael Castro, Lynn Ehlenfeldt, Richard Ehlenfeldt, Guadalupe Maldonado, Thomas Mennes, Marcus Nellsen, and Rico Solis–were shot to death. Defendant was charged with multiple counts of the first degree murder. During his four-week trial, the parties presented dozens of witnesses. A jury found defendant guilty and eligible for the death penalty, but sentenced him to natural life imprisonment. On appeal, defendant raises several evidentiary issues. We summarize those facts necessary to rule on the issues presented.
¶ 4 I. State's Evidence
¶ 5 Palatine police officer Ronald Conley testified that he was on duty in the early hours of January 9, 1993, when he saw a car enter the Brown's Chicken parking lot. He learned that the driver was looking for his older brother, who worked at the restaurant but had not come home that night. Within a few hours, Conley responded to a radio call about a missing juvenile, who also worked at Brown's Chicken. After meeting with the juvenile's family, he proceeded to the restaurant, where he gained entry through an open employee door. Conley saw a bloody mop just inside the doorway and called for backup.
¶ 6 According to Conley, Officer Saxsma arrived, and the two officers entered the restaurant with guns drawn. Inside, Conley saw a foot and hand protruding from a walk-in freezer on the building's east side. Upon opening the freezer door, they discovered five bodies. Officer Haas arrived, and the three officers searched the rest of the restaurant, ultimately discovering two more bodies in the walk-in cooler on the building's west side. All seven appeared to have suffered fatal gunshot wounds. Assistant medical examiners later confirmed this observation.
¶ 7 Sergeant Robert Jacobsen testified that he helped remove the bodies from the cooler and freezer. The only officer to enter the walk-ins, Jacobsen covered his shoes with plastic bags to protect them from blood and to avoid leaving shoe prints. Despite his efforts, the bags and shoes filled with blood, and the bags adhered to the soles of his shoes. At trial, Jacobsen identified shoe prints in the freezer as his own, but forensic comparison of the prints was not possible, as Jacobsen threw his bloody shoes away. He admitted that he never reported or recorded that he had left shoe prints in the freezer. On cross-examination, defendant questioned whether the shoe prints were Jacobsen's. Consequently, on redirect, the State was allowed to play for the jury a video depicting Jacobsen removing several of the bodies while wearing plastic bags on his shoes.
¶ 8 Forensic investigators discovered that the restaurant's trash cans were empty with the exception of the remains of a four-piece chicken meal, a paper cup, and napkins. The cash register appeared to have been closed and reopened to sell a meal at 9:08 p.m. The receipt was consistent with the meal discovered in the trash can, leading investigators to believe that one of the offenders may have purchased the meal. Investigators also collected extensive trace evidence, including fibers, hairs, blood, and more than 200 fingerprints. On one of the discarded napkins, investigators found a latent fingerprint impression, which was later found to match codefendant's prints. None of the latent prints matched defendant's fingerprints.
¶ 9 Investigators also determined that two of the chicken bones recovered contained saliva. One of these bones produced two DNA profiles: a major profile consistent with someone eating the chicken, and a minor profile consistent with someone touching the chicken with their hands. The major profile matched codefendant. Defendant was excluded as a contributor to the profiles.
¶ 10 Eileen Bakalla testified that she had been friends with defendant and codefendant. On January 8, 1993, she received a telephone call from defendant, who asked her to meet him and codefendant in a Jewel grocery store parking lot in Carpentersville, Illinois. Defendant added that they had "done something big." Bakalla left work at 9:30 p.m. and met defendant and codefendant as planned. In the parking lot, she noticed green rubber gloves in the back of codefendant's car. The friends drove to Bakalla's townhouse in her car. En route, she asked the two men about a canvas money bag they had brought with them, and they replied that it contained money from their Brown's Chicken robbery.
¶ 11 At Bakalla's house, defendant and codefendant split the money, and defendant gave Bakalla $50 he owed her. The three smoked marijuana and remained at Bakalla's house for a few hours before Bakalla dropped codefendant back off at his car. She and defendant drove past Brown's Chicken, where they saw ambulances and squad cars in the parking lot. Defendant told her that codefendant had gone "ballistic and started killing people, " "slit the owner's throat from ear to ear, " and "put the rest of the employees in the cooler [and] in the freezer." Defendant said codefendant had shot four people in the cooler and handed the gun to defendant, who shot two people in the freezer. He added that they had worn gloves, mopped the floor afterward, and thrown the gun in the Fox River. Bakalla and defendant then went to defendant's home, where they spent the night. The following day, Bakalla accompanied defendant as he cleaned codefendant's car at a Streamwood, Illinois, carwash.
¶ 12 Bakalla did not inform police about the murders until they approached her on May 15, 2002. She testified, however, that she informed her husband, Keith Abel, about the murders prior to their 1998 wedding. Abel testified that, in 1998, Bakalla told her that defendant and codefendant had done "something big" and mentioned Brown's Chicken.
¶ 13 Anne Lockett testified that she had been friends with defendant, codefendant, and Bakalla, and had also dated defendant. She frequently abused drugs and alcohol in 1992 and 1993 and twice attempted suicide. Following one such attempt, she was brought to a hospital, where, on January 9, 1993, she received a telephone call from defendant, who told her to watch the news that night because he had "done something big." The lead story that night concerned the Brown's Chicken murders.
¶ 14 Following her January 25, 1993 release from the hospital, Lockett met defendant and codefendant at defendant's home. Defendant offered to tell her about the Brown's Chicken robbery, noting that they had already told Bakalla because they had to use her as an alibi. Defendant and codefendant than told Lockett that, wearing old clothing and shoes, they had driven codefendant's car to Brown's Chicken. There, they had placed a wedge behind the back door to prevent the employees' escape. Codefendant ordered a chicken dinner, which upset defendant, who was worried that he would leave greasy fingerprints. The two men then went into the bathroom and put on gloves.
¶ 15 When they exited the bathroom, an employee tried to exit through the back door, but the wedge prevented his escape. Defendant and codefendant crowded the employees into the freezer and cooler and shot them. Codefendant slit one woman's throat, and another employee vomited french fries when shot. Defendant and codefendant then mopped the floor and wiped the area down to remove fingerprints. They later threw their clothes into a dumpster and the gun into the Fox River.
¶ 16 They explained to Lockett that they had chosen Brown's Chicken because codefendant had worked there, and they committed the offense because codefendant wanted to see what it was like to kill someone, and defendant agreed to help. They told Lockett that they would kill her if she told anyone. Lockett further testified that defendant had owned a silver .38-caliber revolver that he kept in his bedroom, but she never saw it after her hospital discharge.
¶ 17 On February 17, 1993, police interviewed codefendant because of his previous employment at Brown's Chicken. Per his request, Lockett accompanied him, posing as his girlfriend. She sat in a waiting room for less than a half-hour. No one spoke to her. In March of 2002, Lockett received a telephone call from a Palatine police officer named King. King was the first law enforcement official she told about her knowledge of the Brown's Chicken murders. Lockett explained that she had not come forward earlier because she was afraid defendant would kill her if she did.
¶ 18 Police Commander William King testified that he spoke with Lockett in March of 2002. After that conversation, he spoke with codefendant at his Carpentersville home on April 3, 2002. Codefendant agreed to a buccal swab, which King later submitted for analysis. King also spoke with defendant at the Palatine police station on April 27, 2002. Defendant denied involvement in the murders and provided fingerprints and a buccal swab.
¶ 19 On May 7, 2002, King learned that the major DNA profile from the four-piece chicken dinner matched codefendant. On May 16, 2002, King and Detective Briscoe met defendant in Indianapolis, Indiana, and drove him to Palatine. Defendant returned voluntarily. They did not discuss the case during the four-hour drive. En route, Palatine's police chief called King and told him that the station was surrounded by reporters and they should proceed to the Streamwood police station instead.
¶ 20 After defendant waived his Miranda rights, King told him he believed he was involved in the Brown's Chicken murders. Defendant responded that he was sorry for what happened. He stated that he and codefendant had driven to Brown's Chicken in codefendant's Ford Tempo, and defendant brought his .38-caliber handgun. They chose Brown's Chicken because codefendant had worked there. They entered the restaurant, ordered a meal, and ate it. After the meal, they announced a robbery. A young employee mopping the floor offered the men money, but they told him to put it away and go to the back of the store. Codefendant then shot a woman. They ran out of the restaurant, drove away, and disposed of the gun. Defendant's share of the robbery proceeds was approximately $800.
¶ 21 After a break, King returned to the interview room with Assistant State's Attorney (ASA) Michael McHale. McHale explained that he was a prosecutor and advised defendant of his Miranda rights. McHale and defendant spoke for approximately one hour before McHale exited the interview room, complaining that he felt ill and was going to rest.
¶ 22 After defendant used the washroom, he asked to speak to King alone. After King readvised defendant of his Miranda rights, they spoke for approximately two hours. Defendant again told King that he and codefendant had planned to rob Brown's Chicken because codefendant used to work there. They went at closing time because they thought fewer employees would be there. Defendant brought a .38-caliber revolver and a knife with a brass-knuckle handle. They drove to the restaurant in codefendant's Ford Tempo, parked in the mall parking lot, and sat in the car while a young lady loaded "two crippled kids" into a van. After she left, they entered the restaurant and were surprised to find seven employees working. They ordered a meal, which codefendant ate before throwing the remnants in the garbage. Defendant then handed a set of green rubber gloves to codefendant, and they announced a robbery.
¶ 23 A young, skinny kid who was mopping the floor offered them money, but defendant told him to put it away and get in the back. Defendant fired a warning shot and told the employees to move to the back of the store. In the west walk-in cooler, defendant found two older men, kneeling, facing the wall. He shot them in the back and then in the head. Defendant reloaded and handed the weapon to codefendant, who was yelling at a female employee. Defendant mopped the floor, and codefendant turned off the lights. Codefendant then slit the female employee's throat, shot her and the other employees, and placed money in a cloth bag.
¶ 24 The two men left Brown's Chicken and drove to the Carpentersville Dam, where defendant threw his gun, knife, and casings into the Fox River. They met Bakalla in a Jewel parking lot in Carpentersville and proceeded to her house, where defendants split the money, and defendant gave Bakalla $50 he owed her. They dropped codefendant back off at his car, which he had left in the Jewel parking lot, and defendant and Bakalla drove toward Palatine. Along the way, defendant told Bakalla about the robbery. They drove past Brown's Chicken, where they saw several ambulances and squad cars. The following day, defendant and Bakalla took codefendant's car to a car wash.
¶ 25 Defendant further told King that Lockett was the only other person defendant told about the offense. Codefendant was mad that he told "the girls." Defendant added that the restaurant employees were nice. King asked why he would kill them if they were nice. Defendant replied, "because [we] wanted to do something big." Following his interview with King, defendant spoke with ASA McHale for approximately three hours.
¶ 26 Former ASA McHale testified that he was a Cook County circuit court judge, but previously served as an assistant State's Attorney and, in that capacity, had interviewed defendant. His initial interviews with defendant were slow-going, and he learned only that defendant and codefendant had robbed the Brown's Chicken with a silver gun and that a young employee had been mopping the floors. Following the first interview, McHale, who was ill that evening, slept while King interviewed defendant. McHale later returned to the interview room, and defendant described the offense in greater detail.
¶ 27 Defendant told McHale that he and codefendant had driven to Brown's Chicken in codefendant's Ford Tempo with bullets, rubber gloves, a .38-caliber revolver he had purchased from Matt Wzientek, and a knife with a brass-knuckle handle. They entered at around closing time when no other customers were present. Codefendant ordered a chicken dinner, ate some of it, and threw the rest in the trash. The two men then put on rubber gloves, and defendant handed the knife to codefendant. Defendant fired a warning shot and told the employees to go to the back of the restaurant. A young man offered him cash, but defendant told him to go to the back of the store.
¶ 28 Defendant shot two men in the walk-in cooler, reloaded, and handed the gun to codefendant. As defendant mopped the floor to remove footprints, codefendant yelled at a female employee, punched her, cut her with a knife, and then shot her and the other employees. They then exited through a rear door. The men drove to the Fox River, where they discarded the gun and knife. They then drove to the Jewel in Carpentersville, where they met Bakalla. The three drove to Bakalla's house, where they smoked marijuana and split the money. Defendant's share was between $700 and $800. He also gave Bakalla a small amount of money.
¶ 29 Bakalla and defendant dropped codefendant off at his car, which was still in the Jewel parking lot, and drove past Brown's Chicken, where they saw ambulances. Although defendant had already told Bakalla that they had robbed Brown's Chicken, he now informed her that they had also shot the employees. Bakalla dropped defendant off at home, and defendant threw his clothes in a dumpster. Defendant also informed McHale that he had told Lockett about the murders shortly after she was released from the hospital. McHale asked defendant if he wished to memorialize his statement, but defendant declined because he was tired and wanted to sleep.
¶ 30 Matt Wzientek testified that he sold a .38-caliber revolver and a box of round-nose bullets to defendant in 1992.
¶ 31 Medical Technician Alicia Hines testified that she spoke with defendant on May 19, 2002, after he had suffered a broken jaw. Hines learned that defendant had been arrested for the Brown's Chicken murders and asked him how he could kill seven people and whether he had been drunk or high at the time. Defendant responded that he had been sober, and the murders were "just for fun." Hines did not document this conversation.
¶ 32 Firearms expert Peter Striupaitis testified that round-nose bullets were recovered from the scene, and they had been fired from a .38-caliber revolver. He never received a gun for forensic analysis.
¶ 33 Debbie Medow testified that, on January 8, 1993, she took two developmentally challenged persons from the residential home where she worked to Brown's Chicken. They remained at the restaurant until it closed at 9:00 p.m. The restaurant had no other customers, and she did not notice any other cars in the parking lot.
¶ 34 Defendant's former coworker, Walter Hanger, testified that, in early May of 2002, defendant asked him, "if you killed somebody, would God forgive you?"
¶ 35 II. Defense Evidence
¶ 36 James Bell, former coordinator of the Brown's Chicken Task Force, testified that a man named Jonathan Simonek made several incriminating statements in 1998 and gave a videotaped confession in August of 1999. ...