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People v. McCullough

Court of Appeals of Illinois, Second District

February 11, 2015

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JACK D. McCULLOUGH, Defendant-Appellant

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Appeal from the Circuit Court of De Kalb County. No. 11-CF-454. Honorable James C. Hallock, Judge, Presiding.

SYLLABUS

Defendant's conviction for the murder of a seven-year-old girl in 1957 was affirmed and his convictions for kidnapping and abduction of the girl were vacated, notwithstanding his contention that he was not proved guilty beyond a reasonable doubt, since the evidence was sufficient for any rational trier of fact to find that all of the elements of the crimes at issue were proved beyond a reasonable doubt, despite the passage of many years, including identification testimony, details related to the scene of the abduction, the testimony of police involved in investigating the " cold case," the testimony of inmates housed with defendant, and testimony related to the victim's autopsy.

Thomas A. Lilien and Paul J. Glaser, both of State Appellate Defender's Office, of Elgin, for appellant.

Richard H. Schmack, State's Attorney, of Sycamore (Lawrence M. Bauer and Scott Jacobson, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Burke concurred in the judgment and opinion.

OPINION

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ZENOFF, J.

[¶1] Following a bench trial in 2012, defendant, Jack D. McCullough, was convicted of the 1957 kidnapping and murder of seven-year-old Maria Ridulph. He appeals. We affirm in part and vacate in part.

[¶2] I. BACKGROUND

[¶3] A. December 3, 1957 Through April 26, 1958

[¶4] On December 3, 1957, seven-year-old Maria Ridulph lived with her family on Archie Place in Sycamore, Illinois. She was a second-grade student at West School. Her friend Kathy Sigman, who lived four or five houses away from Maria, was eight and attended third grade at

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West School. Defendant, who was 18 years of age in 1957 and was known then as John Tessier, lived with his family at 227 Center Cross Street, approximately a block and a half or two blocks from Maria's house. Sycamore in the 1950s was described by witnesses as a rural farm town, a place where people did not lock their doors.

[¶5] The corner of Archie Place and Center Cross Street was a gathering place for the neighborhood children, where they played games like hide-and-seek. There was a large tree at that corner, and the corner was lit by a streetlight. After dinner on the evening of Tuesday, December 3, 1957, Maria and Kathy were allowed to play together at the corner, in the season's first snow. Maria ate dinner at 5 p.m., and Kathy's dinnertime was 5:30 p.m. At just before 6 p.m., Kathy and Maria arrived at the corner and played " duck-the-cars," a game where they would run behind the large tree to avoid being lit up by the headlights of cars on Center Cross Street, which was also known as state Route 23.

[¶6] At trial in 2012, Kathy was 63 years old. Her married name was Mary Sigman Chapman, although she still went by her nickname, Kathy. Chapman testified that, as she and Maria were playing at the corner of Archie Place and Center Cross Street at 6 p.m. on December 3, 1957, a man approached them, walking from the south. Chapman testified that it was " very, very dark" outside but that it was not dark on the corner with the streetlight " shining down." Chapman described the man who approached them as having a slender face, a flip in the side of his hair, and large teeth. On cross-examination, Chapman described the man as an " older person," which she clarified as being, to her eight-year-old self, someone twice as old as she was. According to Chapman, the man, whom she did not know, was slender, maybe 150 pounds, and was wearing a sweater with a lot of colors in it and jeans.

[¶7] Chapman testified that the man introduced himself as " Johnny." Johnny asked the girls if they liked dolls and if they would like a piggyback ride. Maria accepted a piggyback ride, and when Johnny and Maria returned to the corner, Maria ran home, three doors away, to get a doll. According to Chapman, she observed Johnny under the streetlight while they waited for Maria to return with her doll. Chapman testified that, after Maria ran back to them with her doll, Chapman went home to get mittens for her cold hands. When Chapman got back to the corner, Maria should have been there but was not.

[¶8] Chapman testified that she went to Maria's house, thinking that Maria had gone home. According to Chapman, Maria's brother, Charles, said, " She still must be hiding from you," and told her to keep looking for Maria. Chapman testified that she went back outside to look for Maria but did not find her. At that time, she went to her own home and told her mother about " Johnny and Maria." Her mother called the police. According to Chapman, over the next several months the police and the FBI showed her thousands of photographs and took her to possibly 20 lineups, but she never identified anyone and was never shown a photograph of " Johnny."

[¶9] Charles, who was 11 years old in 1957, testified that the family ate dinner promptly at 5 p.m. and that he and a friend were listening to records after dinner when Chapman came to the door saying that she could not find Maria. Charles also recalled that Maria's bedtime was always at 8 p.m. and that Maria would be in their mother's room reading books for a period leading up to her bedtime. Maria

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did not come home on the night of December 3, 1957. That night and the next day, the town organized a search. Still, Maria was not found over the next days, weeks, or months. Then, during the weekend of April 26, 1958, Charles was on a camping trip when his parents received a telephone call.

[¶10] On April 26, 1958, James T. Furlong, a funeral director and the coroner of Jo Daviess County, Illinois, assisted in recovering the remains of a female child from among some timber about a half mile off Route 20 in Jo Daviess County. Furlong, 88 years old at the time of trial, testified that the body was found on the ground and that it had some clothes and one sock on it. According to Furlong, the body was " in bad shape from the length of time [it] was out in the timber." Furlong testified that he took the body to his funeral home in Galena, Illinois. Furlong identified People's exhibit No. 10 as a certified copy of the coroner's inquest report of the death of Maria Ridulph, dated June 3, 1958. Without objection, the portion of the report that contained the autopsy protocol was introduced into evidence.

[¶11] The autopsy protocol indicated the following. At 11:30 p.m. on the night of April 26, 1958, Dr. K.M. Truemner conducted the autopsy at the Furlong Funeral Home. Furlong, the De Kalb County State's Attorney, and members of the Illinois State Police and the FBI attended the autopsy. The body was identified as Maria's, from dental records. The body lay in a supine position on the mortuary table, partially rotated to the left, with the left hip and knee flexed, the left arm extended parallel to the body, and the right arm flexed at the elbow and wrist, lying across the lower chest and upper abdomen. The right leg was extended and slightly externally rotated. According to the autopsy protocol, the body was clad in one pair of brownish-tan ankle-length socks, a soiled black and white checked shirt, and a cotton knit undershirt.

[¶12] Dr. Truemner noted that the body was " complete in the sense of skeletal articulation." He noted extensive soft-tissue loss. However, he also noted that the soft tissues were retained over the right anterior upper chest, right shoulder girdle, and right upper arm to the elbow. The skin and soft tissues were intact over the posterior surface of the trunk to the level of the lower rib margins. The viscera were completely absent. The lungs, heart, esophagus, aorta, and thoracic soft tissues were completely absent " except for remnants of the upper trachea retracted upwards into the base of the neck." With respect to the neck organs, Dr. Truemner stated that the soft tissues of the neck, including the larynx, " are shrunken into a tough sclerotic [(rigid)] mass." Dr. Truemner stated that " dissection is virtually impossible." He continued, " It is impossible to recognize evidence of laryngeal or hyoid fracture" or evidence of interstitial bleeding in the soft tissues of the cervical prevertebral space. Dr. Truemner examined the head and found that the bony surface of the " intact" skull " shows no fracture or penetrating wound." Dr. Truemner found no fracture of the bony skeleton, " with special attention to the skull and cervical spine." The only wounds Dr. Truemner found were the results of " known trauma prior to the subject's disappearance," namely, a laceration of the sole of the left foot and a probable vaccination scar on the left thigh. As to the cause of death, Dr. Truemner concluded that " I can draw no conclusion on this subject." He elaborated by stating that the poor preservation of the body due to the effects of the elements and the ravages of small animals " rendered this doubtful from the outset unless the mechanism had been some form

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of obvious, gross, mechanical trauma." (Emphasis added.)

[¶13] Maria was buried in May 1958. The case went cold for the next 50 years.

[¶14] B. 2008 Through 2012

[¶15] In October 2008, the Illinois State Police began investigating Maria's disappearance, as a result of information supplied by defendant's half-sister, Janet Tessier. As part of the investigation, Special Agent Brion Hanley first spoke with Chapman on September 1, 2010, for approximately an hour and a half. At that meeting, according to Chapman, Hanley asked if she remembered anything about Maria's disappearance. Chapman testified that she gave Hanley " the exact information that I [could] remember back from 1957." On September 9, 2010, Hanley showed Chapman a photo array consisting of six black and white photographs of what appear to be teenage males circa the 1950s. All are clean-shaven and smiling, similar in age, with similar hairstyles that might be expected of that era. Chapman identified defendant's photo as that of the " Johnny" who gave Maria the piggyback ride on December 3, 1957.

[¶16] Hanley testified that the photos were obtained from a 1950s yearbook. According to Hanley, he laid the photos down one at a time in front of Chapman. Gradually, Chapman eliminated every photo except number four, which was defendant's photo. According to Hanley, Chapman picked out number four and said, " That is him." The photo shows a young man with a slender face, hair worn short on the sides and longer on top, and prominent teeth.

[¶17] On June 29, 2011, Sycamore police officers, accompanied by Seattle police officers, executed a search warrant at defendant's Seattle, Washington, residence. Sycamore sergeant Steven Cook testified that, while he was in defendant's residence, he saw defendant's wife open a safe. Inside the safe was a box of ammunition. According to Sergeant Cook, the fact that defendant's wife opened the safe was never released to the public. On July 1, 2011, an arrest warrant was issued for defendant, and extradition proceedings were initiated.

[¶18] On July 27, 2011, defendant was extradited to Illinois. That same day, Maria's body was exhumed and a second autopsy was performed. On August 19, 2011, a grand jury indicted defendant on three counts: count I charged him with Maria's murder (Ill. Rev. Stat. 1957, ch. 38, ¶ 358); count II charged defendant with kidnapping (Ill. Rev. Stat. 1957, ch. 38, ¶ 384); and count III charged defendant with abduction of an infant (Ill. Rev. Stat. 1957, ch. 38, ¶ 385). Counts II and III of the indictment alleged that the applicable limitations periods were tolled due to defendant's absence from Illinois for various periods, commencing on December 11, 1957.

[¶19] C. Pretrial Motions

[¶20] Defendant filed a motion in limine requesting that certain FBI reports that were created during the 1957 investigation be admitted on the basis that they contained exculpatory evidence, specifically evidence of an alibi that had otherwise disappeared due to the witnesses' deaths. The first report reflected that defendant was known as John Samuel Cherry and that the authors of the report referred to him as " Cherry."

[¶21] The first report indicates that the information it contained was received by the FBI via a telephone interview on December 10, 1957, with Air Force staff sergeant Jon Oswald. The report states that Oswald advised the FBI of the following information, which Oswald had obtained directly from Cherry. Cherry had been sent to Chicago on December 2, 1957, for a physical examination and was rejected by

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the Air Force because of a spot on his lung. Cherry stayed over in Chicago and was reexamined on the morning of December 3, 1957, and was again rejected for the same reason. The Air Force gave Cherry a train ticket to Rockford. At this point, Oswald broke off the narrative of what Cherry told him to state his own opinion that furnishing a train ticket was a " highly irregular procedure." Oswald further stated that he telephonically contacted " Chicago" to verify Cherry's story. According to Oswald, he learned that the ticket was furnished by the Army Reserve unit located on Van Buren Street, but " no verification of the information could be obtained at the time of calling." Oswald then resumed the narrative. Cherry stayed in Chicago on December 3, 1957, visited some burlesque shows, and then took the 5:15 p.m. train to Rockford, arriving at 6:45 p.m. In Rockford, Cherry contacted Colonel Liberwitz of the Air Force Reserve at approximately 7:15 p.m. or 7:30 p.m. and told Liberwitz that he had been instructed to report to the recruiting office in Rockford.

[¶22] At this point, the report indicates that Oswald related to the FBI the following conversation between Oswald and Liberwitz. Liberwitz found Cherry's story hard to believe, because it was known that the recruiting office was not open in the evening. Cherry gave Liberwitz the appearance of being a " narcotic," and Cherry said that he was rejected by the Air Force because he was " unstable." Liberwitz directed Cherry to contact Technical Sergeant Froom on the third floor of the recruiting office.

[¶23] Here, the report indicates that Oswald related his conversation with Froom. Cherry appeared " bewildered" and looked and acted like a " lost sheep." Cherry said that he was going to contact his father to come to Rockford to get him.

[¶24] Oswald related to the FBI that on December 4, 1957, Cherry returned to the recruiting office in Rockford, where Oswald met Cherry for the first time. The following is Oswald's account of that meeting. Cherry mentioned that it was a good thing that he was not in Sycamore the night before when the girl disappeared. No details of the disappearance were discussed except for the fact that there had been search parties looking for the girl. Cherry stated that he would not be considered a suspect, because his girlfriend's father was a deputy sheriff. Cherry had a " little black book" containing the names and addresses of girls in Sycamore with their bust and hip sizes. Cherry was wearing an " odd colored flashy" shirt with a string necktie. Cherry was not wearing a hat but was wearing a brown jacket. Oswald noted a " slight cut" across Cherry's upper lip that appeared to be fresh and could have occurred while shaving.

[¶25] Another FBI report contained the following information pertinent to a possible alibi. On December 8, 1957, defendant's stepfather, Ralph Tessier, reported that he had discussed with his wife, Eileen Tessier, that defendant might fall under suspicion because defendant fit the general description of the perpetrator. Ralph reported that defendant was in Rockford at the Air Force recruiting office on the evening of December 3, 1957, and had placed a collect call from Rockford to the Tessier home in Sycamore at about 7:10 p.m. Ralph further reported that defendant had been in Chicago on the Monday preceding December 3, 1957, and was rejected by the Air Force because of a spot on his lung.

[¶26] A third FBI report touching upon a possible alibi indicated that Eileen, defendant's mother, was interviewed on December 8, 1957, and said that defendant had called home collect from Rockford at 7:10 p.m. on the evening of December 3, 1957,

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and that Ralph had gone to Rockford to pick up defendant that evening. A fourth report indicated that the general manager of the Sycamore-Ogle Telephone Company reported that his records reflected that a collect call was placed from a certain number in Rockford on December 3, 1957, at approximately 6:57 p.m. to a number in Sycamore listed to Ralph E. Tessier. The records further revealed that the collect call was made by one " John S. Tassier" and that the call lasted until 6:59 p.m. The general manager told the FBI that he thought the operator who handled the call had misspelled the name " Tessier."

[¶27] Defendant sought admission of the FBI reports either as ancient documents or as public records, arguing an exception to the rule that police reports are not admissible, because, in this case, the defendant rather than the prosecution was seeking their admission. Defendant also argued that due process required their admission where all of his alibi witnesses were deceased after the passage of 55 years. The court denied defendant's motion to introduce the FBI reports.

[¶28] The State filed a motion in limine to bar defendant from introducing a former Sycamore police lieutenant's theory that someone other than defendant committed the crime. As the fortieth anniversary of Maria's disappearance approached in 1997, Lieutenant Patrick J. Solar penned a document entitled " Report on the Closure of the Maria Ridulph Kidnap/Murder Case." In the document, Solar opined that a man suspected in a 1951 Pennsylvania murder was " far and away" the best suspect in the Ridulph case. The suspect, one William Henry Redmond, died in 1992. In the document, Solar stated that the facts of the Pennsylvania case coupled with other facts " create a level of certainty that [Redmond] is responsible for [Maria's] abduction which is greater than mere suspicion." In the next paragraph, Solar stated, " We will never know for certain if Redmond was responsible for the crime." At the time of trial, Solar was alive and could have testified to what was contained in his document. The trial court granted the State's motion to bar and ruled that Solar's testimony would have been speculative and remote.

[¶29] In another motion in limine, the State requested that a 1994 deathbed statement made by Eileen be admitted as a statement against her penal interest. At the time of trial, Eileen was deceased. According to the State's motion, Eileen made the following statement to her daughter Janet allegedly regarding defendant's involvement in Maria's murder: " Those two little girls, one disappeared, John did it." The State contended that, when Eileen made that statement, she exposed herself to criminal liability, because she had given prior contrary statements to the police and the FBI. The court granted the State's motion to admit the statement as a statement against Eileen's penal interest.

[¶30] D. The Trial

[¶31] At trial, Charles and Chapman testified as recounted above. The State also introduced evidence of the recovery of Maria's body and the first autopsy as recounted above. In order to keep the narrative of the events as chronological as possible, we resume here with the evidence surrounding the evening of December 3, 1957, in Sycamore following Maria's disappearance.

[¶32] In December 1957, Cheryl Crain was a sophomore at Sycamore High School. After dinner on December 3, 1957, Crain and her friend Janice Edwards went to Edwards' father's hobby shop in Sycamore to decorate it for Christmas. According to Crain, defendant, who was Edwards' boyfriend, was supposed to give

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Crain a ride home when they finished decorating the shop. While the girls were decorating, Crain heard police loudspeakers and " knew something was going on." Then Crain's father called and told her to lock the shop door. Shortly thereafter, Crain's father came to get her and Edwards. Crain testified that she did not see defendant that night and that he did not call the shop.

[¶33] Dennis Twadell lived in Sycamore and was a friend of defendant's in 1957. According to Twadell, defendant had a 1948 coupe. Twadell recalled that the coupe was " battleship gray" and that defendant would not allow anyone else to drive it. Twadell described defendant in 1957 as about 6 feet tall, 150 to 160 pounds, with sandy blond hair worn short. According to Twadell, in the winter defendant wore flannel shirts and sweaters. Twadell testified that defendant's sweaters were solid colors or multicolored. Twadell testified that, on the evening of December 3, 1957, he learned from members of his church that Maria was missing and that people were forming search parties. He testified that he called defendant, who was not at home. Twadell did not see defendant that night. On cross-examination, Twadell admitted that, when he was interviewed by the police in 2010, he had no recollection of anything unusual occurring on December 3, 1957, until the police refreshed his recollection.

[¶34] Katheran Caulfield was known as Katheran Tessier in 1957. Defendant is her half-brother. Besides Caulfield and defendant, there were five other siblings plus her parents, Ralph and Eileen, living at their house, which she described as a " small house" on Center Cross Street in Sycamore. Caulfield testified that defendant slept on the first floor and that the girls slept in a converted attic on the second floor. According to Caulfield, in 1957 defendant was just under 6 feet tall and " kind of gangly" with wavy hair. She described him as having " like a do-up hairdo on the top." According to Caulfield, defendant " frequently" wore a multicolored sweater that their mother had knit for him. Caulfield testified that she never saw that sweater again after December 3, 1957.

[¶35] Caulfield testified that she knew Maria because it was a small neighborhood and all of the children played together, although Maria had never come over to the Tessier home. According to Caulfield, because defendant was so much older, he never played with Maria.

[¶36] Caulfield testified that her father drove her home from a 4-H gathering in De Kalb, Illinois, at 7 p.m. on December 3, 1957. Caulfield testified that they drove into Sycamore and saw a lot of police cars with flashing lights close to Center Cross Street and that there were people " outside everywhere walking and looking." Caulfield testified that she went directly into her house and that her mother, her sister Jeanne, and her brother Bob were home. According to Caulfield, her mother and father were " very upset" and went out to search for Maria, while she, Jeanne, and Bob stayed in the living room, with the front door locked. Caulfield testified that the side door to the house did not lock, so her father secured it with a piece of plywood. According to Caulfield, by the time she went to bed at 11:30 p.m. or 11:45 p.m., defendant had not come home. She testified that she had not seen defendant for " probably" the prior couple of days.

[¶37] Caulfield testified that Eileen was interviewed by the FBI on December 4, 1957. The trial court admitted Caulfield's description of the conversation because the conversation pertained to Eileen's deathbed declaration. According to Caulfield, she and Jeanne were present in the

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living room for the conversation. Caulfield testified that the FBI agents asked Eileen about defendant's whereabouts the previous evening, December 3, 1957, and that Eileen told the agents that defendant was home. Caulfield testified ...


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