People v. Simpson , 286 Ill. App. 3d 1034 ( 1997 )

                        No. 3--94--0597

_________________________________________________________________

                            IN THE

                  APPELLATE COURT OF ILLINOIS

                        THIRD DISTRICT

                          A.D., 1997

THE PEOPLE OF THE STATE         )  Appeal from the Circuit Court

OF ILLINOIS,                    )  of the 14th Judicial Circuit,

                               )  Rock Island County, Illinois

    Plaintiff-Appellee,        )

                               )

    v.                         )  No. 93--CF--441

                               )

LARRY L. SIMPSON,               )  Honorable

                               )  John D. O'Shea,

    Defendant-Appellant.       )  Judge Presiding

________________________________________________________________

JUSTICE HOLDRIDGE DELIVERED THE OPINION OF THE COURT:

________________________________________________________________

    Following a jury trial, defendant Larry L. Simpson was

convicted of the first degree murder (720 ILCS 5/9--1(a)(1) (West

1992)) and aggravated criminal sexual assault (two counts) (720

ILCS 5/12--14(a)(2), 13(a)(1) (West 1992)) of five-year-old Amber

Sutton.  The court imposed consecutive sentences of natural life

for murder and 60 years each for the Class X aggravated criminal

sexual assaults (730 ILCS 5/5--8--2(a)(2), 5--5--3.2(b)(2),

(b)(4)(i) (West 1992)).

    The issues on appeal are whether the trial court erred in

(1) denying defendant's motion for a mistrial; and (2) imposing

extended term sentences for the Class X offenses.  For reasons

that follow, we affirm defendant's convictions and sentences.

                                  FACTS

    At trial, the State introduced 79 witnesses who testified

about the May 29, 1993, abduction and murder of Amber Sutton.

Amber's mother, Anna Martin, testified that defendant came to

their home around 5:30 p.m.  Amber asked for Martin's permission

to go play with defendant's daughter, Ashley.  Martin denied the

request and told Amber she had to come inside to eat.  After a

few bites of dinner, Amber was allowed to go back outside to play

with children in the neighborhood.  She was never again seen

alive by her family.

    Between 6 p.m. and 6:30 p.m., several witnesses saw Amber

and four-year-old Damion Barnett walking with defendant in the

area between Martin's home and an abandoned power house about

seven blocks away.  Shelly Webb and Shawn Lee observed defendant

playing with the children in the vicinity of the power house and

then picking up the little girl near a broken window of the

building.  About 10 minutes later, they saw defendant walking

away from the building alone.

    At 6:55 p.m., police dispatcher Beth VanDyle received two

911 calls.  The first reported Damion Barnett missing, and the

second reported that a little boy was found in the parking lot of

Spencer Towers apartments.  Damion was unharmed when his mother

picked him up a few minutes later at Spencer Towers.

    Between 6:30 p.m. and 7 p.m., defendant arrived at the home

of his friend, Arthur Wilson.  Defendant kept his clothes at

Wilson's home.  He washed up and then left again.  Around 7:15

p.m., defendant was walking with a bundle of clothes in a grocery

bag when he encountered Joe Liddell.  Liddell gave defendant

money for liquor and agreed to meet him at the home of their

friend, Oscar Morrison.  Defendant threw the bag into some

bushes.  He later joined friends at Oscar's, but left on

Liddell's bicycle when the police entered the neighborhood.

    Shortly after 10 p.m., Shawn Lee telephoned the police to

report his earlier sighting of the little girl reported missing

on the evening news.  He led the police to the power house where

Amber's bloodied and badly beaten body was found.  Around the

same time, defendant visited a gas station and then walked to

Jim's Rib Haven.  The station attendant, who had been alerted

that the police were looking for defendant, called the police.

At 10:30 p.m., the police apprehended defendant in the restroom

of the restaurant.

    Two days later, Liddell recovered the bag of clothes that

defendant was wearing when he was seen with the two children.

Liddell turned the parcel over to the police.  Forensic evidence

established that Amber's blood was spattered on the clothing, and

debris from the floor of the power house was on defendant's

shoes.  Pathologist Dr. Mary Jumbelic testified that she

performed an autopsy and determined that Amber died from

strangulation and a skull fracture caused by blunt trauma.  She

could also have died from bleeding of the vagina, the anus or

internal organs.

    Christine Arnold, defendant's girlfriend, testified for the

State as well as the defense.  As a witness for the State, Arnold

said she kicked defendant out of her house following an argument

on May 24, 1993.  Testifying for the defense, Arnold said that

she and defendant had a normal sexual relationship.  On cross-

examination, Arnold stated that defendant enjoyed anal sex.  The

prosecutor then asked Arnold what she and defendant had argued

about the day she kicked him out.  Arnold responded, "Because I

wouldn't give him no sex and he talked about kidnapping my

daughter."

    Defense counsel moved for a mistrial.  In chambers, the

prosecutor stated that he had interviewed Arnold on several

occasions, and she had always said that the argument was about

sex.  Arnold had never mentioned a threat against her daughter.

Noting the quantity of evidence already presented, the court

denied defendant's motion.  The court instructed the jury that

the testimony was improper and that they should disregard it.  On

redirect, defense counsel clarified that the daughter Arnold had

referred to was defendant's own child.

    Following their deliberations, the jury returned verdicts

finding defendant guilty of murder and aggravated criminal sexual

assault, as charged.  The jury chose not to impose the death

penalty.  The court subsequently found defendant eligible for

natural life imprisonment for murder.  730 ILCS 5/5--8--1(a)(1)

(b) (West 1992).  In addition, the court imposed 60-year,

extended term sentences for aggravated criminal sexual assault.

                           MOTION FOR MISTRIAL

    Defendant first argues that the trial court should have

granted his motion for mistrial because the prejudice caused by

Arnold's testimony could not be cured by the court's

admonishments.  The State concedes that Arnold's unsolicited

comment was improper, but contends that defendant has failed to

show that he was prejudiced by it.

    Where improper testimony is inadvertently introduced in a

jury trial, the error generally may be cured by sustaining an

objection and instructing the jury to disregard the testimony.

People v. Speight, 153 Ill. 2d 365, 606 N.E.2d 1174 (1992).

Whether a mistrial should be granted in such cases is within the

broad discretion of the trial court.  People v. Winfield, 113

Ill. App. 3d 818, 447 N.E.2d 1029 (1983).  The trial court's

decision should not be disturbed on appeal unless the defendant

shows that he was prejudiced by the testimony.  People v. Mabry,

223 Ill. App. 3d 193, 584 N.E.2d 507 (1991).

    In this case, Arnold's non-responsive testimony was clearly

unprovoked and surprised the prosecutor.  Before ruling on

defendant's motion for mistrial, the trial judge noted that the

comment carried a high risk of prejudice because, if believed by

the jury, it indicated defendant's intent to kidnap a child.  See

People v. Bailey, 249 Ill. App. 3d 79, 616 N.E.2d 678 (1993).

However, the judge denied the motion because of the overwhelming

evidence of guilt already presented.  In open court, the judge

admonished Arnold to confine her comments to the questions put to

her and admonished the jury to disregard the witness' reference

to kidnapping.  Then, on redirect examination, defense counsel

asked a precise, leading question to clarify that it was

defendant's own daughter that Arnold had referred to.  No further

reference was made to the improper testimony.

    Based on the vast amount of unmet circumstantial evidence

connecting defendant to the murder, we do not find that the

brief, unsolicited comment by Arnold could possibly have affected

the jury's verdict.  See People v. LeCour, 172 Ill. App. 3d 878,

527 N.E.2d 125 (1988).  Numerous witnesses saw defendant walking

with the victim in the direction of the abandoned power house

within minutes of her disappearance from home.  Defendant was

observed picking up the victim near a broken window of the

building where her body was later found and then leaving alone.

Witnesses testified that defendant subsequently washed himself,

changed clothes, discarded the clothes with the victim's blood on

them, and then drank with friends.

    Defendant's consciousness of guilt was further demonstrated

by his reactions as the police closed in on him.  See People v.

McDonald, 168 Ill. 2d 420, 660 N.E.2d 832 (1995).  When the

police came into the neighborhood where defendant was partying

after the murder, he fled.  When the police next caught up with

him at Jim's Rib Haven, defendant tried to hide in the restroom.

Under the circumstances, we conclude that defendant was not

prejudiced by Arnold's reference to kidnapping, any potential

prejudice was cured by the trial court's admonishments, and the

court did not err in denying defendant's motion for a mistrial.

                               SENTENCING

    Defendant next contends that the court lacked authority to

impose extended term sentences for his two aggravated criminal

sexual assault convictions.  We disagree.

    Section 5--8--2 of the Unified Code of Corrections provides

that a defendant may not be sentenced

         "in excess of the maximum sentence authorized

         by Section 5--8--1 for the class of the most

         serious offense of which the offender was

         convicted unless the factors in aggravation

         set forth in paragraph (b) of Section 5--5--

         3.2 were found to be present.  Where the

         judge finds that such factors were present,

         he may sentence an offender to the following:

            (1) for first degree murder, a term shall

         be not less than 60 years and not more than

         100 years;

            (2) for a Class X felony, a term shall be

         not less than 30 years and not more than 60

         years."  730 ILCS 5/5--8--2(a) (West 1992).

The statute stands for the general rule that where a defendant is

convicted of multiple offenses of varying classifications, only

the offenses within the most serious class may draw an extended

term.  People v. Jordan, 103 Ill. 2d 192, 469 N.E.2d 569 (1984).

    However, the statute fails to address the situation in which

an indeterminate sentence such as natural life imprisonment is

imposed.  A discretionary sentence of life imprisonment is

authorized by section 5--8--1 for first degree murder (730 ILCS

5/5--8--1(a)(1)(b) (West 1992)), but obviously that sentence

cannot be extended pursuant to section 5--8--2(a)(1).

Accordingly, it has been held that an extended term may be

imposed for the most serious conviction other than murder where a

defendant is convicted of multiple offenses and life imprisonment

is imposed for murder.  People v. Young, 124 Ill. 2d 147, 529

N.E.2d 497 (1988).  

    As defendant correctly notes, the rule of Young has not been

applied consistently.  Compare People v. Henderson, 142 Ill. 2d

258, 568 N.E.2d 1234 (1990) (where death penalty imposed for

murder, supreme court reduced aggravated criminal sexual assault

sentence to non-extended term), and People v. Askew, 273 Ill.

App. 3d 798, 652 N.E.2d 1041 (1st Dist. 1995) (where life

imprisonment imposed for murder, court reduced armed robbery

sentence to non-extended term), with People v. Spears, 256 Ill.

App. 3d 374, 628 N.E.2d 376 (1st Dist. 1993) (where life

imprisonment imposed for murder, court affirmed extended term

sentence for attempted murder), and People v. Fauntleroy, 224

Ill. App. 3d 140, 586 N.E.2d 292 (1st Dist. 1991) (where life

imprisonment imposed for murder, court affirmed extended term

sentence for armed robbery).  However, we find Young well-

reasoned, and we do not believe that our supreme court intended

to overrule Young by reducing the defendant's aggravated criminal

sexual assault sentence in Henderson.  Cf. Askew, 273 Ill. App.

3d 798, 652 N.E.2d 1041.

    In this case, in addition to murder, defendant was convicted

of two Class X aggravated criminal sexual assaults, for which the

maximum non-extended sentence was 30 years each.  730 ILCS 5/5--

8--1(a)(3) (West 1992).  After imposing a natural life sentence

for murder, the court found that aggravating factors were

present, including the victim's age (730 ILCS 5/5--5--3.2(b)(4)

(i) (West 1992)) and the fact that the offenses were accompanied

by exceptionally brutal or heinous behavior indicative of wanton

cruelty (730 ILCS 5/5--5--3.2(b)(2) (West 1992)).  Therefore,

applying the statute pursuant to Young, we hold that the trial

court did not err in imposing 60-year, extended term sentences

for defendant's aggravated criminal sexual assault convictions

(730 ILCS 5/5--8--2(a)(2) (West 1992)).  

                               CONCLUSION

    The judgment of the circuit court of Rock Island County is

affirmed.

    Affirmed.

    HOMER, J. concurs;  SLATER, J., partially concurs and

partially dissents.