Appeal from the Circuit Court of Kane County. No. 07-CF-738. Honorable Timothy Q. Sheldon, Judge, Presiding.
The trial court did not abuse its discretion by allowing evidence of decedent's state of mind, when that evidence-notes written by decedent and then subsequently read by defendant-were admitted to show the effect they had on defendant and not for the truth of the matter asserted; moreover, defense counsel was not ineffective for failing to request separate verdicts on the State's three theories of first-degree murder when defendant's theory at trial was that he did not commit the offense and the decision not to separate felony murder from the other offenses was likely a sensible tactical decision.
Thomas A. Lilien and Bruce Kirkham, both of State Appellate Defender's Office, of Elgin, for appellant.
Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and Scott Jacobson, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.
BURKE, PRESIDING JUSTICE
[¶1] In the direct appeal of his first-degree murder and aggravated arson convictions, defendant, Frank Hill, raises two issues. The first is whether the trial court abused its discretion by allowing evidence of decedent Karyn Pearson's state of mind. The second is whether his counsel was ineffective for failing to ask for separate verdict forms for first-degree murder. We affirm.
[¶2] I. BACKGROUND
[¶3] Around 5 a.m. on January 9, 2007, emergency personnel responded to a fire at decedent's townhouse in Gilberts, Illinois. The fire had engulfed decedent's townhouse and destroyed several of the adjacent units. The townhouse units to the north and south of decedent's unit were heavily damaged by the fire. Once firefighters extinguished the blaze, they discovered decedent's charred body on the remains of a sofa in the living room area on the first floor. Investigators were able to determine that gasoline had been used as an accelerant and that the fire's point of origin was the area around decedent's body.
[¶4] Defendant and decedent shared the residence, which decedent and her mother co-owned. The townhouse was located in a six-unit building and was the third unit from the north. Defendant and decedent had been in a relationship for about five years. Decedent had two cars. Decedent and her mother co-owned a silver Jaguar, which defendant drove. Decedent drove a black Mercedes SUV that was provided to her by her employer.
[¶5] A Gilberts policeman was dispatched to the townhouse at 5:11 a.m. and found flames coming from the rear, or west, side of the unit and moving up to the second story. Decedent's Mercedes was parked in the driveway. When firefighters arrived at the scene around 5:20 a.m., the townhouse was fully engulfed by fire. Eight fire departments responded and finally brought the fire under control at 6:30 a.m.
[¶6] Defendant spoke with Gilberts police sergeant Jack Rood at a fire station in Gilberts later that day. Police told defendant that a body believed to be his girlfriend
was found in the burned townhouse. Rood said that defendant did not seem surprised or in shock. Defendant told police that the night before the fire, on January 8, he visited friends Paul Bilecki and Vanessa Roux and went home at 11:30 p.m. Defendant said that decedent called him about 12:50 a.m. and arrived at the townhouse about 1:20 to 1:30 a.m. Decedent told defendant that he did not have to move out of the townhouse, and she went upstairs to read a book. Defendant said that he changed his clothes and left the townhouse about 3 or 3:30 a.m. to drive to Indiana to visit a friend. Shortly after leaving the townhouse, defendant remembered that he was supposed to take a hard hat to a coworker, so he went back and retrieved it from the garage. He met the coworker and delivered the hard hat at a Mobil station in Schaumburg about 4 a.m. and immediately went to Indiana. At 6:20 a.m., defendant called his boss and said that he would not be at work, because his side hurt from an ulcer.
[¶7] Police interviewed defendant again at the police station. Defendant drove to the station in the silver Jaguar. Defendant told police that he could not be certain of the times of his actions, because he did not have a watch and the clock in the Jaguar was not working. Police searched the car and collected an I-Pass transponder from the vehicle. From the trunk, police recovered an empty gas can, which smelled of gasoline and had no cap.
[¶8] Defendant was charged with three counts of first-degree murder: intentional murder, knowing murder, and felony murder (720 ILCS 5/9-1(a) (West 2006)). He was also charged with aggravated arson (720 ILCS 5/20-1.1(a)(1) (West 2006)).
[¶9] Prior to trial, the trial court granted two motions in limine to admit decedent's various statements to coworkers, email exchanges with friends, and three Post-It notes, which were found in the kitchen/family room area, and a handwritten note on the back of a letter, which was found in a garbage can located in the garage of the burned townhouse (Post-It notes and handwritten note referred to collectively as notes). These were discovered by agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) who were sorting through the ashes and debris.
[¶10] At trial, Beth Eichinger, an evidence technician for the Carpentersville police department and a member of the Kane County Major Crimes Task Force, testified that she began collecting evidence in the northwest corner of the residence, in what she called the " family room area," where decedent's body was located. Eichinger was looking for fire debris to be tested for accelerants and any other evidence that would be of value to the investigation. As Eichinger and the ATF agents were going through debris, the ATF agents found some handwritten Post-It notes on a stack of some debris. She testified that the ATF agents were removing large amounts of ash within that area, " [a]nd when they lifted a large amount of ash, they recovered some notebook style papers. And when I opened them, these three pieces of Post-It notes were located within that notebook paper." The Post-It notes were loosely stacked.
[¶11] On cross-examination, Eichinger attempted to describe the kitchen/family room area. She explained that it was hard to tell where one room began and ended. Without walls or dividers, it was hard for her to say whether it was a family room or a kitchen, so she chose to describe it as the " family room, kitchen area." Eichinger confirmed that she was present when the ATF agents were digging up all of the ash and the soot. " Once they had flipped over the large amount of ash soot, is when we
started going through items and they are the ones who actually discovered it." Eichinger confirmed that the Post-It notes were " slightly disoriented within the folded pieces of notebook paper." The ATF agents also recovered a handwritten note written on the back of a letter in the trash can in the garage of the townhouse. Neither the notebook paper upon which the Post-It notes were placed nor a photograph of the notebook paper was admitted into evidence.
[¶12] The note found in the trash can in the garage read: " You put your hands on me for the last time Leave my car & house keys were thru. I loved you so much and you took it for granted." The numeral 62 was crossed out at the bottom. The three Post-It notes found in the kitchen/living room area stated: " I'm tired of your cheating and lies" ; " It's over bye" ; and " Move out!!"
[¶13] Decedent's mother, Mary Jo Pearson, identified the handwriting on the notes as that of her daughter. She explained that " 62" was her and decedent's code for " I love you."
[¶14] Pearson testified that her daughter had been living at the townhouse for less than a year. She described the layout of the townhouse. It consisted of two stories and had an attached two-car garage. There was a walkway around the garage to the front entrance. Once inside the entrance, a " little hallway" led to the living room, which was located at the northwest corner of the townhouse. The living room was two stories high and a loft was located off to the side. A sketch of the interior design of the townhouse showed that the kitchen was located next to the living room/dining room area.
[¶15] Pearson further testified about the weekend before her daughter had died. Pearson stated that decedent came over very early on Sunday morning, sometime between 7 and 7:30 a.m. It was not a planned visit and it was unusual for her to come over at that time. Pearson stated that her daughter was very upset and walked into the house crying. Her daughter stayed the rest of the morning and left sometime later in the day, around 7 or 7:30 p.m. Decedent returned to Pearson's house around 10 p.m. and stayed the night, despite the fact that the townhouse was less than a mile from Pearson's house.
[¶16] On cross-examination, Pearson testified that she was expecting decedent to return to her house late on January 8, after work, but when Pearson called her daughter and asked if she was returning to Pearson's house that night, she said no.
[¶17] The State presented the following testimony of several of decedent's coworkers. Robert Petzold, who worked with decedent, testified that decedent said her boyfriend was upset about her use of the Mercedes SUV supplied by her employer; she and defendant could not stand each other; she was having difficulty being with defendant; she wanted to spend the weekend away; she spent much of the weekend at her mother's house; she was home only for a change of clothing; she " kicked her boyfriend to the curb" over the weekend; defendant was supposed to be at the townhouse packing and moving out; and decedent asked if Petzold knew of a service that could change the locks at the townhouse.
[¶18] Doris Garcia, another coworker, testified that decedent said she was done with her relationship with defendant and wanted out; she was having a difficult time getting defendant to agree to end the relationship; and she argued with defendant and drove around for a couple of hours.
[¶19] Another coworker, Kevin Hargadon, testified that decedent said ...