People v. Shanklin , 2014 IL App (1st) 120084 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Shanklin, 2014 IL App (1st) 120084Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption TONY SHANKLIN, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-12-0084
Rule 23 Order filed December 20, 2013
Rule 23 Order
withdrawn January 28, 2014
Opinion filed January 31, 2014
Held Defendant’s convictions and sentences for first-degree murder and
(Note: This syllabus aggravated criminal sexual assault were upheld where the trial court
constitutes no part of the did not err in finding that certain test results with regard to his
opinion of the court but susceptibility to interrogation techniques used by the police did not
has been prepared by the meet the Frye standard for admissibility, defendant’s motion to
Reporter of Decisions suppress his inculpatory statements on the ground that they were
for the convenience of involuntary due to his low IQ and his withdrawal from drug abuse was
the reader.) properly denied, and the trial court did not rely on any improper
factors in sentencing defendant.
Decision Under Appeal from the Circuit Court of Cook County, No. 04-CR-13517; the
Review Hon. Mary Margaret Brosnahan, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier and Darren E. Miller, both of State Appellate
Appeal Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the
People.
Panel PRESIDING JUSTICE ROCHFORD delivered the judgment of the
court, with opinion.
Justices Lampkin and Reyes concurred in the judgment and opinion.
OPINION
¶1 A jury convicted defendant, Tony Shanklin, of three counts of first-degree murder, one
count of home invasion, and two counts of aggravated criminal sexual assault. The trial court
merged the home invasion count and the three first-degree murder counts into one count of
first-degree murder, and sentenced defendant to a 60-year term of imprisonment for the
first-degree murder conviction and to two 25-year terms of imprisonment for the aggravated
criminal sexual assault convictions, all to be served consecutively. On appeal, defendant
contends: (1) the trial court erred in holding a hearing pursuant to Frye v. United States, 293 F.
1013 (D.C. Cir. 1923) (Frye hearing) to determine the admissibility of certain test results
regarding his susceptibility to interrogation techniques and in finding that those test results did
not meet the Frye standard for admissibility; (2) the trial court erred in denying his amended
motion to suppress where the State failed to prove his inculpatory statements were voluntary;
and (3) the trial court relied on an improper factor in imposing sentence. We affirm.
¶2 On June 18, 2004, a 33-count indictment was filed against defendant regarding the
November 30, 2003, murder of Virginia Warren. Included among the charges were various
counts of first-degree murder, aggravated criminal sexual assault, residential burglary, home
invasion, and armed robbery. Defendant filed a motion to suppress statements on September 5,
2007, and an amended version of that motion on March 12, 2009.
¶3 In his amended motion to suppress, defendant alleged that at the time of his police
interrogation, he was suffering from heroin withdrawal, possessed significantly impaired
cognitive functioning, and was highly suggestible, thereby making his resulting statements
involuntary. Defendant tendered a psychological report wherein Dr. James P. Sullivan opined
on defendant’s suggestibility based in part on the Gudjonsson Suggestibility Scale (GSS). The
State then filed a motion for a Frye hearing. The State claimed that the GSS is unreliable and
does not meet the Frye standard, and that testimony regarding suggestibility invades upon the
province of the trier of fact. Defendant filed a motion to strike the State’s motion for a Frye
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hearing. After hearing argument and taking the matter under advisement, the trial court granted
the State’s motion and ordered the Frye hearing to be conducted in conjunction with the
hearing on the amended motion to suppress statements.
¶4 I. The Frye Hearing
¶5 Dr. James Sullivan testified for the defense as an expert in forensic neuropsychology. Dr.
Sullivan testified that the GSS is “specifically designed to identify individuals who may
demonstrate decreased resistance to subtle pressure or interrogative techniques. Oftentimes
individuals who are identified as being more suggestible by virtue of the results of the GSS
have been shown through research to have provided more erroneous information during
statements they provide to the police.” Dr. Sullivan testified that the GSS provides information
about psychological factors relevant to the issue of coercion but that he would “never include
[GSS results] for the purpose of being dispositive or offering a final conclusion about whether
an individual’s statement is voluntary or not.”
¶6 Dr. Sullivan testified that the GSS has been around since the mid-1980s and has been the
subject of all sorts of research and has undergone a whole process of validation. Dr. Sullivan
stated that the GSS is widely accepted “in forensic clinical psychology regarding Miranda
issues” because it is widely described in the literature. He pointed to references to the GSS in
the Handbook of Psychology, Volume 11: Forensic Psychology (2003), by Allen M. Goldstein,
and Psychological Evaluations for the Courts, by Gary B. Melton et al. (3d ed. 2007), which is
a handbook for mental health professionals and lawyers and is “pretty widely acknowledged as
the authoritative text for psychological involvement in the legal system.” Both books identify
the GSS as a measure to assess suggestibility in Miranda evaluations.
¶7 Dr. Sullivan opined: “There is no question that [the GSS] is accepted in the field in which I
am an expert [forensic neuropsychology]. I would like to say, though, *** that the field in
which I am an expert is a relatively small field.” Dr. Sullivan explained that the GSS provides
a story and then asks the subject questions about the story, many of the questions being
leading. The GSS gives a yield measure of how many of the leading questions the subject gave
in to. After answering the questions the subject is told he did not do a very good job and is told
to try harder, and he is asked the same questions again. The frequency with which the subject
changes his answers is called shift and is thought to be an indication of interrogative pressure.
¶8 In the instant case, Dr. Sullivan administered the GSS to defendant. Defendant’s yield
score was 11, which places him at the 95th percentile of the normative sample. His shift score
was 7, which places him at the 90th percentile, so that his total suggestibility score was 18.
Looking at the normative data, this places him in the high end of the continuum (i.e, defendant
is highly suggestible).
¶9 Dr. Sullivan testified that a person with a criminal record who has had multiple “contacts
with the justice system” is generally less suggestible than a person who has not had such
contacts. When administering the GSS to defendant, Dr. Sullivan was not aware of defendant’s
extensive criminal history, i.e., of his prior “contacts with the justice system” consisting of
seven felony convictions.
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¶ 10 Dr. Sullivan conceded there has been a lot of criticism of the GSS because Mr.
Gudjonsson’s normative data comes from Iceland and the United Kingdom and there are
cultural and vocabulary differences between the United States and those countries. Dr.
Sullivan stated, though, that the fact the GSS has been criticized does not mean it has not been
widely accepted.
¶ 11 Dr. Sullivan admitted that Bruce Frumkin, a psychologist who wrote a chapter in a book he
edited, stated in 2003 that “although Gudjonsson’s work is well known in the area of
suggestibility research, it has not been widely used by forensic clinicians in the United States.”
In 2008, Frumkin stated that the GSS is a specialized forensic assessment instrument
“unknown to many psychologists.”
¶ 12 Dr. Sullivan was also aware of a survey in the publication Professional Psychology
Research and Practice in 2003 regarding tests used in forensic psychological evaluations, and
that the GSS was not mentioned therein. The same was true for a survey in the Journal of
Personality Assessment.
¶ 13 Dr. Joan Leska testified for the defense as an expert in forensic psychology. She testified
that the GSS is not a new or novel test; the first version came out in 1987 and the second
version came out in 1997. Dr. Leska opined that the GSS is generally accepted in the forensic
psychological community. The GSS is referenced in: Psychological Evaluations for the Court,
by Melton; the Handbook of Psychology, by Goldstein; and Interrogation and Disputed
Confessions: A Manual for Forensic Practice (2005), by Gregory Declue, Ph.D. The GSS has
been referenced in workshops that Dr. Leska has attended at the American Academy for
Forensic Psychologists and she has used it herself over 20 times.
¶ 14 Dr. Leska testified that the GSS “provides information to the trier of fact in terms of
whether this person has certain characteristics that would make him or her more vulnerable to
suggestion or to influence or to providing erroneous material.” Dr. Leska agreed that the GSS
is not a measure of someone’s ability to understand Miranda and that the GSS has been
criticized because it was normed on a British sample. However, Dr. Leska did not agree that
the culture of America is different than the culture of the United Kingdom.
¶ 15 Dr. Leska was asked about a statement by Mr. Gudjonsson that the validity of the GSS in
predicting suggestibility during an actual police interrogation was not known. Dr. Leska
replied, “I would agree with that. There [have] been other studies that say in the actual situation
we don’t know.” Dr. Leska further testified in pertinent part:
“Q. Would you agree that there are different types of memory?
A. Yes, I do.
Q. And semantic memory is memory for concepts, words and objects, right?
A. Correct.
Q. And then there’s episodic or event memory, correct?
A. Episodic or autobiographical, correct.
Q. Correct. And that’s the individual’s unique store of autobiographical memory,
correct?
A. Correct.
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Q. Police interrogations are concerned with the autobiographical memory, correct?
A. It could be, if *** the person is involved in crime.
Q. But the GSS is testing semantic memory, correct?
A. Correct.”
¶ 16 Dr. Leska also testified that a person with a criminal history who has had contacts with the
criminal justice system is less suggestible than a person without such a criminal history.
¶ 17 Dr. Sharon Coleman testified for the State as an expert in forensic psychology. Dr.
Coleman is a clinical psychologist with the Forensic Clinical Services of Cook County, which
provides the court-ordered examinations for the circuit court of Cook County. Dr. Coleman
testified she is familiar with the GSS but she does not use it because she does not “believe the
GSS measures anything clinically relevant to the evaluations [she] performed at Forensic
Clinical Services.” She testified in pertinent part:
“Q. Are there problems with the way the GSS was standardized or normed?
A. I believe so, yes.
Q. What are the problems?
A. Typically, this test was normed on a population of British and some Icelandic
citizens which those are the norms that are currently used with this test with American
populations. *** Typically, standardized instruments use a population that’s going to
be representative of the population where the test is going to be used in. So one of the
criticisms or problems that there is with the GSS is that the norms aren’t necessarily
representative of the American population in which its [sic] been used.
***
Q. To your knowledge, has there ever been any United States validation of the
GSS?
A. There has been an attempt to look at how some American samples score on the
GSS. ***
Q. Do you know what the results of the attempt were?
A. The results showed there were some distinct differences between how American
samples score *** on certain measures of this test compared to the British counterparts.
Q. Would that affect where they would be placed if there were a scale
suggestibility, would that affect where they would be placed relative to subjects from
the United Kingdom?
A. Well, some of the percentile rankings for the British norm versus the American
subjects don’t–aren’t necessarily *** consistent. So that if you have a percentile
ranking at 75 percentile, it doesn’t necessarily mean the same thing if you are testing
somebody from an American population. ***
Q. How about cutoffs as it relates to assessing somebody’s suggestibility? ***
A. Yes. There is a problem.
Q. What is the problem?
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A. There is not operationalized diagnostic cutoff for what’s considered high and
low or high suggestibility or really high suggestible versus low suggestible.
Q. *** The subjects in the initial validation of the GSS, do you know what that
status was in general?
A. I think that again one of the difficulties or problems with the normative samples
of the GSS is that the normative sample did not just contain pretrial detainees but it also
contained some individuals who *** were victims of crimes, some individuals who
were witnesses of crimes, and some individuals who may have been already convicted
of crimes. *** [T]he inclusion of that part of the population is problematic for the
normative group.
***
Q. The fact that the GSS is based on a story that’s told to somebody versus a
custodial interrogation which involves *** a real life scenario, does that affect this test
in any way?
***
A. Again, I think one of the criticisms and problems with the GSS is that it is a test
that’s administered verbally, a story that’s relatively benign to the examinee ***. A
custodial situation or an interrogation situation is not just experienced verbally and by
hearing but rather it’s something that a person has some experience with. *** When
they are relaying information about a custodial situation, again, they are calling on not
just what they hear, they are calling on what they have seen, what they have smelled,
what they have touched and so a multiple sensory modality to relate information back
as opposed to a testing situation which does not involve all those sensory modalities.
Q. No personal relevance in the story of the GSS?
A. Exactly.”
¶ 18 Dr. Coleman testified she has conducted thousands of Miranda evaluations and reviewed
the reports of other professionals and the GSS is not generally accepted within the office of
Forensic Clinical Services. Dr. Coleman keeps up on surveys of what doctors in the
psychological field are using for testing, and she stated that in the recent surveys “the GSS has
not been mentioned as an instrument used prominently or by forensic psychologists.” Dr.
Coleman noted that Thomas Grisso, who is “well-known in the area of Miranda evaluations,”
had referenced the GSS in a 1986 book when discussing “the evaluation of Miranda abilities,”
but that by 2003, he had “reevaluated his view of the GSS as a useful tool in light of assessing
Miranda abilities”; Grisso’s 2003 edition of the book no longer contained a recommendation
of the GSS. Dr. Coleman testified that “[t]he GSS has not gained general acceptance in the
field of psychology.”
¶ 19 Dr. Peter Lourgos, staff forensic psychiatrist and assistant director of Forensic Clinical
Services, testified he never asks psychologists to test for suggestibility as it “is not a useful
assessment in these types of evaluations.” He stated that suggestibility is not a psychiatric
diagnosis, it is not listed in the Diagnostic and Statistical Manual of Mental Disorders, and
“there is no formalized definition of what it is to be suggestible.”
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¶ 20 At the conclusion of the Frye hearing, the trial court concluded “there is not general
acceptance of the GSS in the forensic psychology community.” Accordingly, the trial court
found that the GSS did not meet the Frye standard and barred consideration of such evidence at
the hearing on the amended motion to suppress and at trial.
¶ 21 II. The Hearing on the Amended Motion to Suppress Statements
¶ 22 Defendant contended his statements to the police and to the assistant State’s Attorney
(ASA) were involuntary because he suffered from a “significantly comprised cognitive
function” and because he was a heroin addict undergoing severe withdrawal at the time he
made his statements.
¶ 23 A. Evidence Regarding Defendant’s Cognitive Functioning
¶ 24 Dr. Sullivan testified that Dr. Leska administered an IQ test to defendant in 2006 and his
full scale IQ is 70, putting him in the second percentile of his age cohort. That puts him in the
borderline, but not impaired, range. His verbal subscore is 74, putting him in the fourth
percentile. In August 2008, Dr. Sullivan conducted an evaluation of defendant to assess his
cognitive functioning and his “competence to confess.” As part of the evaluation, Dr. Sullivan
conducted a clinical interview of defendant so as to gather biographical information and
personal history. During the interview, defendant reported having been hit in the head with a
machete in 1995. Dr. Sullivan administered to defendant neuropsychological screening
measures shown to have predictive power to identify brain damage. Defendant performed in
the impaired range on these tests. Dr. Sullivan next administered a test of academic capability
in which defendant performed at the third-grade level in math, the fourth-grade level in
spelling and reading, and the eighth-grade level in sentence comprehension, meaning he is able
to use context and figure out what things mean.
¶ 25 Dr. Sullivan testified he administered a set of four tests called the Grisso measures, which,
taken as a whole, are designed to give the evaluator an idea about the subject’s present capacity
to appreciate and understand the Miranda warnings. Dr. Sullivan concluded, “Taken as a
whole in the Grisso measures, there was no indication that when I saw [defendant] in August of
’08 there was any difficulty with him appreciating and understanding Miranda rights.”
¶ 26 Dr. Coleman testified that in May and June 2009, she met with defendant for a total of 52
hours to evaluate him on his ability to understand Miranda. She also reviewed police reports,
defendant’s statements, and the reports of other experts. Dr. Coleman conducted a mental
status exam to assess defendant’s level of alertness, his orientation, and if there were any
“symptoms that he may be experiencing that might interfere with his ability to communicate
during the evaluation.” Dr. Coleman found that defendant was very engaging, alert and
oriented and his levels of reasoning, judgment and insight were adequate. Based on her
interviews with defendant, her review of the records, reports and the videotaped confession,
Dr. Coleman opined that defendant would have been able to understand his Miranda rights
when he made his statements to the police and to the ASA.
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¶ 27 Dr. Lourgos testified he reviewed the records in this case and evaluated defendant
personally in July 2009. Dr. Lourgos specifically asked defendant about his Miranda rights
and defendant demonstrated a clear understanding of those rights. Dr. Lourgos concluded
defendant had the ability to understand his Miranda warnings at the time he made his
statements.
¶ 28 Dr. Stafford Henry, a triple-board-certified private physician specializing in general,
forensic, and addiction psychiatry, testified he met with defendant in February 2008 and
discussed the Miranda warnings with him. Defendant demonstrated that he understood his
Miranda rights; he was able to explain and paraphrase them. Dr. Henry concluded that at the
time defendant made his statements, he possessed the capacity to knowingly and intelligently
waive his Miranda rights. Dr. Henry further testified that defendant “was of average
intelligence” and that “although he may not be highly educated, based on his sentence
structure, given his memory, given his capacity to interact with [Dr. Henry], there is no
evidence that [defendant] is cognitively impaired.”
¶ 29 B. Evidence Regarding Defendant’s Heroin Addiction and Withdrawal
¶ 30 The following evidence comes from the testimony of Detectives Kevin McDonald and
Daniel Jacobs and ASA David Williams. Detectives McDonald and Jacobs first interviewed
defendant at 9:15 a.m. on May 7, 2004, in an interview room. Defendant told them he was
hungry and wanted something sweet to eat, so they gave him some coffee with sugar and
cookies. He was allowed to use the bathroom. Defendant looked fine but he did appear a little
nervous and tired. Defendant said he was a heroin user and had a $120-a-day habit. Detective
Jacobs read defendant his Miranda rights, which defendant waived. They spoke for about 45
minutes.
¶ 31 The detectives met again with defendant at 10:30 a.m. at which time he was readvised of
his Miranda rights and he said he understood them. This conversation lasted about 1 hour and
40 minutes. When the officers left the room, defendant said he wanted to sleep, so he was given
a cot to use. About 4:45 p.m., defendant was allowed to use the bathroom. About 5 p.m., ASAs
Williams and Dombrowski arrived at the police station. At 6:45 p.m., Detectives McDonald
and Bogucki met with defendant, who was read his Miranda rights again and agreed to speak.
They spoke for about 1 hour and 45 minutes and defendant gave an inculpatory statement.
Defendant ate a meal from McDonald’s and was given the extra ketchup he requested.
¶ 32 Around 9 p.m., defendant spoke to the ASAs and Detective McDonald. Around 10:30
p.m., defendant had some pizza and a soft drink. Defendant was asked how he wanted his
statement recorded and he chose to give a handwritten statement. At 11 p.m., the ASAs took a
handwritten statement from defendant.
¶ 33 At 9 a.m. the next morning, May 8, 2004, defendant was given his breakfast. ASA
Williams returned to the police station around 5:30 p.m. that day, and Detective Jacobs
informed him that defendant had asked to speak to him again. ASA Williams went into the
room alone with defendant. Defendant told ASA Williams he now wanted to give a videotaped
statement. The videotaped statement was taken at 8:53 p.m.
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¶ 34 At no time did the detectives or ASAs have any trouble communicating with defendant. He
did not appear to be in any distress, discomfort, or pain. He never said he did not understand his
Miranda rights and he never asked for an attorney. He was not shaking or sweating. No one
ever told defendant they would go out and get him some heroin if he confessed. Defendant
never said he was sick and needed drugs, and he never vomited in the room. Defendant never
complained of any physical discomfort or diarrhea. Defendant used the bathroom about the
same number of times as any other prisoner. Defendant was never handcuffed to the wall in the
interview room. Defendant was asked if he was under the influence of heroin and he said he
was not; he was not asked if he was in withdrawal. ASA Williams said defendant was sniffling
but not abnormally so.
¶ 35 In his signed, handwritten statement, defendant stated he was treated well by the police and
the ASAs, that he was given food and drink and allowed to use the bathroom, that his statement
was freely and voluntarily given, and that he was not under the influence of drugs or alcohol.
¶ 36 James O’Donnell testified for the defense as an expert in pharmacology. Mr. O’Donnell
testified that heroin has a relatively short half-life, and withdrawal symptoms begin as soon as
six to eight hours after the last dose was taken. The greatest intensity of withdrawals ranges
from 18 to 72 hours after the last dose was ingested. If a person anticipates withdrawal, the
effects are even greater.
¶ 37 Mr. O’Donnell interviewed defendant on June 21, 2005, and learned that defendant was a
heavy and chronic user of cocaine and heroin. Defendant told Mr. O’Donnell he was arrested at
12:30 a.m. on May 7, 2004, and that he had ingested 12 to 13 bags of heroin the day before he
was arrested (including two bags about an hour prior to being arrested). Defendant further told
Mr. O’Donnell that at the time of his arrest, he had seven “dime bags of heroin” hidden in the
waistband of his pants, which he “exhausted” by approximately 5 a.m. on May 7, 2004, while
in custody. Defendant told Mr. O’Donnell that “from that time on” he “started to experience
withdrawal. He was primarily manifesting as stomach complaints, diarrhea, some vomiting,
abdominal cramping, pain, a desire for sweets, asking for sweets, [lying] down, adopting the
fetal position to relieve the abdominal cramping, which gradually over the course of time
became worse in his description.” Defendant told Mr. O’Donnell that the police promised him
heroin in exchange for a statement.
¶ 38 Mr. O’Donnell testified he was made aware from the police reports that defendant signed a
handwritten statement at 11:09 p.m. on May 7, 2004, which was about 18 hours after his
reported last use of heroin at 5 a.m. When asked to explain defendant’s withdrawal symptoms
at the time of his handwritten statement, Mr. O’Donnell testified “[defendant] would be
approaching or in the peak intensity of withdrawal at the time of the first statement and even
before that.”
¶ 39 Mr. O’Donnell testified he viewed defendant’s videotaped statement, which defendant
gave at 8:53 p.m. on May 8, 2004. Mr. O’Donnell stated that at the time defendant made his
videotaped statement, he still would have been at the “peak of withdrawal experience.” Mr.
O’Donnell testified that in the videotape, defendant was bent over (which people in withdrawal
will do to help relieve abdominal cramping) and had a runny nose, which is “consistent with
withdrawal from heroin. It is a visible sign.”
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¶ 40 Mr. O’Donnell testified he reviewed medical records from Cook County jail and learned
from them that when defendant was processed, he was identified as a chronic heroin user and
given “Schedule A,” also known as a “withdrawal cocktail,” consisting of “an anti-spasmatic,
anti-nauseant and anti-diarrheal to relieve some of the gastrointestinal effects of acute physical
withdrawal.”
¶ 41 Barry Hargan, a substance abuse specialist who used to be a certified drug counselor,
testified he interviewed defendant in June 2005 and also reviewed defendant’s videotaped
statement and the police and medical records. Mr. Hargan testified that “from the time
[defendant] was arrested to the time that he made his video statement *** he would have
undergone very severe heroin withdrawal.” Mr. Hargan testified “an individual who is going
through withdrawal is too sick to participate in any meaningful dialogue or cognitive process.”
¶ 42 Dr. Lourgos reviewed all the same information as the other experts. With regard to the
videotaped statement, Dr. Lourgos testified that “the defendant was not in severe opiate
withdrawal.” Dr. Lourgos also pointed out that when defendant underwent an intake
examination at Cermak Health Services in the jail one day after giving his videotaped
statement, “none of those records indicated that he was evidencing signs of withdrawal. He did
report heroin and cocaine dependence but the records indicate that his demeanor appeared
appropriate and he was recommended for placement in the general population.”
¶ 43 Dr. Henry testified that he “wouldn’t say that opioid withdrawal affects one’s ability to
understand. It’s more uncomfortable. It’s more–it’s what we call sematic. The withdrawal
symptoms *** are gastrointestinal, there’s tearing, there’s goose flesh, there’s bone pain, there
are flu-like symptoms. But opioid withdrawal is generally not characterized by a change in
cognitive ability.” Dr. Henry stated there is no evidence that defendant’s withdrawal
symptoms rose to the level where they would substantively interfere with his intellectual
capacity to understand and waive his Miranda rights. Dr. Henry further testified he had viewed
defendant’s videotaped statement and that he was of the opinion that defendant “was not
suffering severe withdrawal.”
¶ 44 Dr. Coleman testified that a person going through withdrawal is still able to converse, to
answer questions, to give coherent answers, and to make voluntary choices. Dr. Coleman
testified she, too, viewed defendant’s videotaped statement and that he did not appear to her to
be in any severe distress. He was able to communicate appropriately and was coherent, logical
and organized.
¶ 45 At the conclusion of the evidentiary hearing, the trial court stated:
“[T]he time frame that a lot of the opinion is based on with respect to when this
defendant would be in withdrawal really all goes back to the defendant’s self-report
that his last use was on 5-7-04 at 5 a.m. in the police station, and I do not find that the
defendant’s self-report is reliable. *** I find that based on a complete review of all of
the testimony in the case, coupled with the review that I saw of the video, I find that the
defendant was not in severe withdrawal at the time of the statement. I find that the
defendant’s ability was not compromised to knowingly understand or to waive
Miranda. I find under the totality of the circumstances that he did in fact knowingly
waive Miranda and that the statement was voluntary, so, therefore, the motion is going
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to be respectfully denied.”
¶ 46 III. Trial
¶ 47 At trial, the victim’s son, James Weathersby, testified that in November 2003, his mother,
Virginia Warren, was 42 years old, suffered from asthma, and worked the late-night shift as a
certified nursing assistant at the Glenbridge Nursing Home.
¶ 48 Officer Candace Milovich testified she was assigned to conduct a well-being check of the
victim’s apartment at 5218 West Crystal Street on November 21, 2003. Officer Milovich
entered the apartment through the open back door near the kitchen. The apartment was messy
and Officer Milovich found the victim dead in the bedroom. Officer Milovich secured the
apartment for the detectives, who arrived a short time later.
¶ 49 Officer Frank Pierce and Officer William Moore testified that on November 21, 2003, they
were assigned to investigate this case. They arrived at 5218 West Crystal Street at around 6
a.m. They entered the victim’s apartment through the back door and discovered the victim
dead in the bedroom between the dresser and the mattress. She was lying on her stomach with
her knees spread apart. Her face was on the mattress and her right hand was on the box spring.
There was a black mesh nylon tied around her right wrist. There was a white cloth in her mouth
secured by a blue nylon strap wrapped around her head. She was wearing a white nurse’s jacket
and was naked from the waist down with her white scrubs and panties around her ankles. She
had no cuts, bruises, or signs of bleeding.
¶ 50 The apartment had both front and rear entries and there was no sign of forced entry to either
door or to any windows. The front door was bolted shut from the inside. The apartment was
messy, but there were no signs of struggle.
¶ 51 There was a strong odor of Pine-Sol in the bedroom. From the bedroom dresser, the police
collected a bottle of Pine-Sol, a bottle of hydrogen peroxide, and a McDonald’s styrofoam cup.
From the bedroom floor, they collected an open bottle of Tide, a full bottle of Pepsi, a white
pull-over shirt, and two blue fingernails from the victim. The police dusted the apartment for
fingerprints and recovered one lift from the medicine cabinet in the bathroom. When later
tested at the crime lab, no latent prints were found on the Tide bottle or the Pepsi bottle, and the
lift from the medicine cabinet was not suitable for comparison.
¶ 52 Dr. Nancy Jones, the chief medical examiner for Cook County, testified she performed the
autopsy on the victim. The victim was wearing a short-sleeved white jacket, blue T-shirt, and
plaid bra, and her lower clothing consisted of a pair of white slacks and cream colored panties
which were both pushed below her thighs. A piece of black cloth was loosely knotted around
her right wrist. A white sock was pressed very deeply into her mouth.
¶ 53 Dr. Jones testified the sock absorbed the moisture inside the victim’s mouth and expanded,
blocking the airway to the lungs. The victim’s brain then swelled due to the lack of oxygen.
The swelling of the victim’s brain put pressure on structures at the bottom of the brain that
controlled her heartbeat and respiration. Dr. Jones opined that the victim died as a result of
asphyxia due to gagging and that the manner of death was homicide.
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¶ 54 Jennifer Bell, an expert in DNA testing with the Illinois State Police Forensic Science
Center, explained DNA testing to the jury. Ms. Bell testified she received several pieces of
evidence in this case and that no semen was found on the victim’s vaginal, oral and rectal
swabs. No blood or semen was found on the victim’s white scrub top.
¶ 55 Ms. Bell received a blood standard from the victim. Ms. Bell examined the victim’s panties
for the presence of semen and found that stains on the back side of the panties glowed under a
special light source indicating the presence of semen. Ms. Bell conducted DNA analysis on the
stain and extracted the DNA profiles of a female and a male. The female profile was consistent
with the victim. Ms. Bell entered the unknown male profile into the Combined DNA Indexing
System, which indicated “an association of that profile to [defendant].”
¶ 56 A buccal standard was taken from defendant on May 8, 2004. Ms. Bell compared the DNA
from that standard with the DNA from the panties and concluded that the human male DNA
profile in the semen stain matched the DNA profile of defendant. Such a profile would be
expected to occur in approximately “1 in 79 quadrillion black, 1 in 93 quadrillion white, and 1
in 260 quadrillion Hispanic unrelated individuals.”
¶ 57 Officer Brian Costanzo testified that at around 12:39 a.m. on May 7, 2004, defendant was
arrested after a field interview in an area of high narcotics trade. Defendant was handcuffed
and subjected to a pat-down search. The officers transported defendant to the police station,
where his waistband was searched, but nothing was found. He was handcuffed to a wall at this
point.
¶ 58 Detective Kevin McDonald testified that on May 7, 2004, he was notified that defendant
was in custody. At 9:15 a.m. that day, he and Detective Jacobs met with defendant in an
interview room at the police station. Defendant told them he needed to use the bathroom and
that he was a heroin user and wanted something sweet to eat. Defendant was taken to the
bathroom and also given pop, chips, coffee with sugar, and cookies. Detective Jacobs read
defendant his Miranda rights. Defendant said he understood his rights and wanted to speak to
them.
¶ 59 Defendant told the officers that in November 2003 he was living in his stepfather’s
apartment on the second floor at 5216 West Crystal Street, the same building where the victim
rented an apartment. Defendant said he did not know the victim personally but had seen her
going in and out of the building. Defendant said that on the day the victim’s body was
discovered, November 21, 2003, he was in his stepfather’s apartment. Defendant said he was
never inside the victim’s apartment.
¶ 60 After the conversation with the officers ended, the detectives asked defendant to think
more about that day, and they left the room.
¶ 61 At 10:30 a.m., Detectives McDonald and Jacobs met with defendant again. Detective
Jacobs told defendant his Miranda rights were still in effect and defendant said he understood.
Defendant said he had no specific memories of the days leading up to November 21, 2003, but
he did remember being at his stepfather’s apartment when the body was discovered. The
detectives told defendant they “received a lot of phone records in regards to this investigation.”
Defendant told the detectives they should speak with his sister Nicole about those records as
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she was in Cook County jail and had previously gotten into trouble at home for running up a
large bill on a party line. The detectives met with Nicole at 1 p.m. At 5 p.m., the detectives
called the felony review unit for the Cook County State’s Attorney.
¶ 62 At 6:45 p.m., Detectives McDonald and Bogucki met with defendant. Detective McDonald
advised defendant of his Miranda rights and he said he understood and agreed to talk with
them. The detectives told defendant they had interviewed his sister and they told him that his
DNA had been recovered at the scene. Defendant then said he wanted to tell them the truth.
Defendant said that in the early morning hours of November 20, 2003, he entered the victim’s
apartment through a partially open rear bedroom window. He was looking for money and small
items he could easily carry away and sell to buy drugs. Since he was known in the area, he tied
a T-shirt around his face to hide his identity.
¶ 63 Defendant told the detectives that once inside the victim’s apartment, he found $11 in
change. He made several phone calls on the phone in the apartment. While he was on the
phone, he heard someone approach the front door and try to get in, so he ran to the kitchen to
hide. He tied the T-shirt around his face again. The victim entered the apartment and walked
back to the bedroom. She then walked out of her bedroom and started walking into the living
room area adjacent to the kitchen. As she approached the kitchen, the victim saw defendant’s
reflection on some glass doors. She stopped and asked, “Who’s there, who’s there?”
¶ 64 Defendant told the detectives that he took a folding pocketknife out of his pocket and
approached the victim, who backed away from him to the wall of the living room. He grabbed
her and forced her into the bedroom. He pushed her onto the bed and had her roll onto her
stomach. Then he found a piece of cloth and tied her hands. He took a “rag” and “stuffed it in
her mouth and tied that gag with a blue strap that he had found [lying] around.” He pulled her
pants and underpants down. She was half lying on the bed and her knees were on the floor.
Defendant pulled down his own pants and placed his penis in her vagina and then in her anus.
Then he ejaculated on the floor. He noticed there was some fecal matter on his penis so he took
a rag and wiped it off. He went to the kitchen and got some Tide and Pine-Sol and cleaned up
the area of the floor where he had ejaculated because he did not want his DNA to be found.
¶ 65 Defendant told the officers that at this point, the victim appeared to be having an asthma
attack. Defendant got some water, splashed it on her face, and wiped her face with a towel.
Defendant took the $11 and the victim’s car keys and left by the back door of the apartment. He
took the rag he had used to clean the floor and threw it out on Leamington Avenue. He got on a
bus going south toward his girlfriend’s house, but on the way he bought and used some drugs.
¶ 66 Detective McDonald testified defendant did not appear to be in pain or discomfort,
although he did appear nervous and tired. No one ever told defendant they would give him
heroin if he made a statement.
¶ 67 ASA David Williams testified that between 6 and 7 p.m. on May 7, 2008, he and ASA
Todd Dombrowski went to the police station, where they met with defendant. Defendant was
sitting unhandcuffed in a chair, and ASA Williams introduced himself and ASA Dombrowski
to defendant and explained that they were prosecutors. ASA Williams advised defendant of his
Miranda rights and defendant said he understood and was willing to speak to them. Defendant
gave essentially the same account he had given earlier to the detectives, but he added some
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details. He said he had known the victim since 2003, she lived in the building next door to his
mother’s house, and he would see her come and go from work. He then described his
commission of the crime, adding the facts that he first rang the victim’s doorbell, and when
nobody answered he stacked up some milk crates and climbed through an open window.
¶ 68 The conversation lasted about 45 to 60 minutes. At one point, ASA Williams spoke to
defendant alone and asked if he had any complaints about his treatment by the police and he
said he did not. ASA Williams asked defendant how he wanted to memorialize the statement
and defendant chose to give a handwritten statement. They relocated to a room with a table. As
both ASAs asked defendant questions, ASA Dombrowski wrote out the statement, which
defendant signed.
¶ 69 At trial, during the testimony of ASA Williams, defendant’s handwritten statement was
published to the jury. Other than the addition of some personal biographical information, the
statement was virtually the same as the oral statements defendant had given earlier. In the
statement, defendant acknowledged he had been treated well by the police, been given food
and drink and allowed to use the bathroom, and that he was not then under the influence of
drugs or alcohol. After taking the handwritten statement, ASA Williams left the police station.
¶ 70 ASA Williams returned to the police station sometime after 5 p.m. on May 8, 2004, and
spoke to Detective Jacobs, who said defendant wanted to speak to him again. ASA Williams
went into the interview room and met with defendant, who said he now wanted to make a
videotaped statement because he wanted “to put in that [the victim’s death] was an accident.”
ASA Williams called for a videographer, who arrived after 8 p.m. The videotaped statement
began at 8:53 p.m. and was played in court for the jury. That statement, with the addition of
defendant saying he did not mean to kill the victim, is substantially identical to his earlier
handwritten statement.
¶ 71 Defendant called three expert witnesses, Barry Hargan, Dr. James O’Donnell, and Dr.
James Sullivan, who testified that in their opinions defendant was undergoing severe heroin
withdrawal while in police custody at the time he made his statements and that he has a low IQ.
¶ 72 In rebuttal, the State presented Dr. Stafford Henry, who testified that defendant was not
suffering from severe heroin withdrawal at the time he made his statements.
¶ 73 Following all the evidence, the jury convicted defendant of three counts of first-degree
murder, one count of home invasion, and two counts of aggravated criminal sexual assault
(penis to vagina and penis to anus). At the sentencing hearing, the trial court specifically noted
defendant’s extensive prior criminal history, including his seven felony convictions, and
determined that a lengthy period of incarceration was necessary to protect society from
defendant. The trial court merged the home invasion count and the three first-degree murder
counts into one count of first-degree murder, and sentenced defendant to a 60-year term of
imprisonment for the first-degree murder conviction and to two 25-year terms of imprisonment
for the aggravated criminal sexual assault convictions, all to be served consecutively.
Defendant appeals.
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¶ 74 First, defendant argues the trial court erred in granting the State’s motion for a Frye hearing
on the admissibility of his GSS results and ultimately finding that the GSS results failed to
meet the Frye standard for admissibility.
¶ 75 “In Illinois, the admission of expert testimony is governed by the standard first expressed
in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). [Citation.] Commonly called the
‘general acceptance’ test, the Frye standard dictates that scientific evidence is admissible at
trial only if the methodology or scientific principle upon which the opinion is based is
‘sufficiently established to have gained general acceptance in the particular field in which it
belongs.’ [Citation.] In this context, ‘general acceptance’ does not mean universal acceptance,
and it does not require that the methodology in question be accepted by unanimity, consensus,
or even a majority of experts. [Citation.] Instead, it is sufficient that the underlying method
used to generate an expert’s opinion is reasonably relied upon by experts in the relevant field.
[Citation.] Significantly, the Frye test applies only to ‘new’ or ‘novel’ scientific
methodologies. [Citation.] Generally speaking, a scientific methodology is considered ‘new’
or ‘novel’ if it is ‘ “original or striking” ’ or ‘does “not resembl[e] something formerly known
or used.” ’ [Citation.]” In re Commitment of Simons, 213 Ill. 2d 523, 529-30 (2004). Scientific
methodology is considered novel when the issue of its general acceptance in the relevant
scientific community remains unsettled. People v. McKown, 226 Ill. 2d 245, 257-58 (2007).
¶ 76 De novo review applies when determining whether a Frye hearing was required and
whether the scientific technique at issue is generally accepted in the relevant scientific
community. Simons, 213 Ill. 2d at 531. The proponent of the scientific technique (defendant
here) has the burden of establishing its general acceptance in the relevant scientific
community. People v. McKown, 236 Ill. 2d 278, 294 (2010).
¶ 77 In the present case, defendant argues that the trial court erred in granting the State’s motion
for a Frye hearing on the admissibility of the GSS results, where the GSS is not new or novel.
Defendant also argues that even if the Frye hearing was required to be held, the trial court erred
in finding that the GSS was not generally accepted in the relevant scientific community.
¶ 78 In support of his arguments, defendant cites the testimony of Dr. Sullivan and Dr. Leska.
As discussed, Dr. Sullivan testified that the GSS has been around since the mid-1980’s and is
generally accepted in the relevant field of forensic psychology. Dr. Leska similarly testified
that the GSS has been around since 1987 and is generally accepted in the forensic psychology
community. However, Dr. Sullivan also admitted to reviewing surveys indicating that the GSS
is not currently being used in forensic psychological examinations. Dr. Sullivan also
acknowledged that Bruce Frumkin, who wrote a chapter for a book he edited, stated in 2008
that the GSS is “unknown to many psychologists.” Both Dr. Sullivan and Dr. Leska
acknowledged that the GSS has been widely criticized as not providing an accurate measure of
an American subject’s suggestibility, because the normative data underlying the GSS comes
from British and Icelandic subjects who do not share the same culture and vocabulary as
Americans and, thus, are not representative of the American population on which the GSS is
used. Dr. Sullivan and Dr. Leska also testified that the GSS tests the suggestibility of a
subject’s semantic memory, i.e., his memory of concepts, words, and objects, as opposed to his
autobiographical memory, i.e., his memory of events he actually experienced. Dr. Leska
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indicated that since a police interrogation focuses on the subject’s autobiographical memory
and not his semantic memory, the GSS has little value in determining the suggestibility of the
subject’s responses to the police interrogation. Dr. Leska agreed with a statement by Mr.
Gudjonsson, the creator of the GSS, that the validity of the GSS in predicting suggestibility
during an actual police interrogation is unknown. Both Dr. Sullivan and Dr. Leska testified that
a person with a criminal history who has had prior contacts with the criminal justice system is
less suggestible than a person without such contacts.
¶ 79 Dr. Coleman similarly testified to the GSS being an inaccurate measurement of an
American subject’s suggestibility during a police interrogation because the GSS was
standardized or normed on a test group consisting of a population of British and Icelandic
citizens who were not representative of the American population. Dr. Coleman also criticized
the GSS for including in its test group persons other than pretrial detainees who had been
interrogated by police; in her view, the inclusion of such other persons renders the GSS
unreliable in measuring the suggestibility of a pretrial detainee such as defendant. Dr. Coleman
further testified that as a clinical psychologist with the Forensic Clinical Services of Cook
County, she has conducted thousands of Miranda evaluations and that she does not use the
GSS because it is not “clinically relevant.” Dr. Coleman also testified that the GSS is not
generally accepted within the office of Forensic Clinical Services. Dr. Coleman testified that in
her review of surveys of what doctors in the psychological field are using for testing, the GSS
is not mentioned as an instrument used by forensic psychologists. Dr. Coleman specifically
noted that Thomas Grisso, who is well known in the area of Miranda evaluations, had
reevaluated his earlier determination that the GSS is “a useful tool in light of assessing
Miranda abilities,” and no longer recommended the GSS. Dr. Coleman concluded that the
“GSS has not gained general acceptance in the field of psychology.”
¶ 80 On all this evidence, we cannot say the trial court erred in granting a Frye hearing on the
admissibility of defendant’s GSS results, where the acceptance of the GSS in the field of
forensic psychology was unsettled despite its almost 30-year existence and, thus, remained a
novel scientific methodology. See McKown, 226 Ill. 2d at 257-58. Also on this evidence,
defendant failed to meet his burden of showing that the GSS is reasonably relied upon by
forensic psychologists when examining American pretrial detainees with an extensive prior
criminal history, such as defendant here, to determine whether they understood their Miranda
rights and/or to determine whether statements made during police interrogations were
voluntary. Accordingly, we affirm the trial court’s order granting the State’s motion for a Frye
hearing and barring the admission of defendant’s GSS results.
¶ 81 Defendant argues that People v. Nelson, 235 Ill. 2d 386 (2009), compels a different result
as it stands for the proposition that the GSS is generally accepted by forensic psychologists in
Illinois. We disagree. In Nelson, the trial court there conducted a Frye hearing and found that
the GSS “appeared to be generally accepted in the psychological community as one of many
tests used by psychologists.” Id. at 426. The trial court further found, though, that despite the
general acceptance of the GSS, its reliability had not been established (id. at 431) and,
therefore, that it did not meet the standard for admissibility under Frye (id. at 426). On appeal,
the supreme court noted that the trial court had seemed to apply the “Frye-plus-reliability test”
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in which “the trial court first determines whether a particular technique or methodology is
generally accepted in the relevant scientific field. If the court determines that it is generally
accepted, the court then considers whether it is reliable.” Id. at 431. The supreme court held
that “this standard is not the standard to be applied in Illinois. The determination of the
reliability of an expert’s methodology is naturally subsumed by the inquiry into whether it is
generally accepted in the scientific community.” Id. Accordingly, the supreme court concluded
that the trial court had erred in its Frye analysis. Id. The supreme court did not pass any
judgment on the trial court’s finding that the GSS “appeared to be generally accepted in the
psychological community as one of many tests used by psychologists.” Id. at 426.
Accordingly, contrary to defendant’s argument, Nelson is not relevant to the instant case as it
provides no authority from our supreme court regarding the GSS’s general acceptance in the
forensic psychological community.
¶ 82 Next, defendant contends the trial court erred in denying his amended motion to suppress,
where the statements he made to the police and ASAs were not voluntary. “A court of review
will accord great deference to the trial court’s factual findings, and will reverse those findings
only if they are against the manifest weight of the evidence; however, the court will review de
novo the ultimate question posed by the legal challenge to a trial court’s ruling on a motion to
suppress. [Citations.] Where a defendant challenges the admissibility of his confession through
a motion to suppress, the State has the burden of proving the confession was voluntary by a
preponderance of the evidence. [Citations.] The concept of voluntariness includes proof that
the defendant made a knowing and intelligent waiver of his privilege against self-incrimination
and his right to counsel.” People v. Braggs, 209 Ill. 2d 492, 505 (2003).
¶ 83 “To determine whether the defendant’s confession was voluntary, we consider the totality
of the circumstances surrounding it, including the defendant’s age, intelligence, education,
experience, and physical condition at the time of the detention and interrogation; the duration
of the interrogation; the presence of Miranda warnings; the presence of any physical or mental
abuse; and the legality and duration of the detention ***.” People v. Nicholas, 218 Ill. 2d 104,
118 (2005).
¶ 84 In the present case, defendant does not argue that his statements were involuntary because
the duration of the interrogation and detention was too lengthy. Nor does he argue that he was
not given his Miranda warnings or that he was the subject of any physical or mental abuse.
Rather, defendant’s argument is that his statements were not voluntary because of his low IQ
and diminished mental capacity and the fact that he was undergoing heroin withdrawal at the
time he made the statements. 1
1
Defendant also contends that “the fact that the police did not bother to record the interrogation
process strikes against the State.” The recording of the interrogation process was not statutorily
required until August 6, 2005, after defendant’s interrogation here. See 725 ILCS 5/103-2.1(b) (West
2008) (added by Pub. Act 93-517, § 25 (eff. Aug. 6, 2005)). Further, defendant makes no argument on
appeal that the interrogation process was abusive. Accordingly, the failure to record defendant’s
interrogation does not require reversal of the order denying his motion to suppress.
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¶ 85 In support of his argument regarding his intellectual impairment, defendant cites the
testimony of Dr. Sullivan that he had been hit in the head with a machete in 1995 and that he
performed in the “impaired” range on neuropsychological screening measures. Dr. Sullivan
also testified defendant has an IQ of 70, putting him in the second percentile of his age group,
with fourth-grade reading and spelling skills and third-grade math skills.
¶ 86 In support of his argument regarding his heroin withdrawal, defendant cites the testimony
of James O’Donnell and Barry Hargan that based on defendant’s self-report of last ingesting
heroin at 5 a.m. on May 7, 2004, he was undergoing severe heroin withdrawal at the time of his
handwritten statement at 11:09 p.m. on May 7, 2004, and his videotaped statement at 8:53 p.m.
on May 8, 2004. Mr. Hargan testified that defendant’s severe heroin withdrawal rendered him
“too sick to participate in any meaningful dialogue or cognitive process.”
¶ 87 However, there was contrary testimony regarding defendant’s intellectual impairment and
the severity of his heroin withdrawal at the time he made his statements. Specifically, with
regard to his cognitive functioning, Dr. Coleman testified she met with defendant in May and
June of 2009, to evaluate his ability to understand Miranda. Dr. Coleman found defendant to
be very engaging, alert and oriented and that his levels of reasoning, judgment and insight were
adequate. Dr. Coleman concluded defendant would have been able to understand his Miranda
rights when he made his inculpatory statements to the police and the ASAs. Dr. Lourgos
evaluated defendant in July 2009 and also concluded defendant had the ability to understand
Miranda warnings when he made his statements to the police and the ASAs. Dr. Henry met
with defendant in February 2008 and determined he “was of average intelligence” and found
no evidence of cognitive impairment. Dr. Henry also determined that at the time defendant
made his statements, he possessed the capacity to knowingly and intelligently waive his
Miranda rights.
¶ 88 With regard to the severity of defendant’s heroin withdrawal, Dr. Lourgos reviewed the
relevant records and viewed the videotaped confession and concluded that he “was not in
severe opiate withdrawal” at the time he made the statements. Dr. Henry also viewed the
videotaped confession and concluded that defendant was not suffering severe heroin
withdrawal that would have substantively interfered with his intellectual capacity to
understand and waive his Miranda rights. Dr. Coleman testified that a person undergoing
withdrawal is capable of making voluntary choices, engaging in a conversation, and answering
questions. She, too, viewed the videotaped confession and determined that defendant did not
appear to be in severe distress, that he communicated appropriately, and that he was coherent,
logical, and organized.
¶ 89 The trial court here expressly disbelieved defendant’s self-report of last ingesting heroin
while in custody at 5 a.m. on May 7, 2004, and the court obviously accorded the testimony of
Dr. Coleman, Dr. Lourgos, and Dr. Henry greater weight than the testimony of Dr. Sullivan,
Mr. O’Donnell, and Mr. Hargan in finding that defendant’s statements were voluntarily made.
“[Q]uestions regarding the credibility of witnesses, the resolution of evidentiary conflicts, and
the determination of the amount of weight to which evidence is entitled are primarily the
responsibility of the trier of fact, and a court of review typically will not substitute its judgment
on such matters.” People v. Moorman, 369 Ill. App. 3d 187, 190 (2006). The testimony of Dr.
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Coleman, Dr. Lourgos, and Dr. Henry support the trial court’s factual findings that defendant
was not so cognitively impaired as to be unable to understand or waive Miranda and that he
was not in severe heroin withdrawal at the time he made his statements. Accordingly, the trial
court’s factual findings were not against the manifest weight of the evidence. Said factual
findings also support the trial court’s ruling that defendant’s statements were voluntarily made.
The trial court committed no error in denying defendant’s amended motion to suppress.
¶ 90 Further, in denying defendant’s amended motion to suppress, the trial court also stated it
had viewed the videotape of defendant’s statement and saw no indication of severe heroin
withdrawal impacting his ability to make a voluntary statement. We have also reviewed the
videotape of defendant’s statement (which was included in the record on appeal) and note that
defendant sniffled and leaned over the table at which he sat for part of the time, but that he
exhibited the ability to understand the questions and statements posed to him by the ASA
regarding the sexual assault and murder and that he provided coherent, logical answers to said
questions. We concur in the trial court’s finding that defendant did not there exhibit any signs
of severe heroin withdrawal that would render his statement unknowing and involuntary.
Accordingly, we affirm the denial of the amended motion to suppress.
¶ 91 Finally, defendant contends his sentence was improper because the trial court erred in
considering the victim’s death, which was a factor inherent in the offense of murder, as an
aggravating factor. When sentencing defendant on a murder conviction, the trial court may
consider as an aggravating factor “the force employed and the physical manner in which the
victim’s death was brought about or the nature and circumstances of the offense.” People v.
Saldivar, 113 Ill. 2d 256, 271 (1986); People v. Joe, 207 Ill. App. 3d 1079, 1086 (1991).
However, the trial court may not consider the end result of defendant’s conduct, i.e., the death
of the victim, a factor which is implicit in every murder. Id. In other words, the single factor of
the victim’s death cannot be used both as an element of the offense of murder and as a basis for
imposing a harsher sentence than otherwise might have been imposed. People v. Abdelhadi,
2012 IL App (2d) 111053, ¶ 9. Such dual use of a single factor is referred to as “double
enhancement.” Id. Although the trial court has broad discretion in imposing a sentence (id.),
the determination of whether the trial court made a double enhancement error is a question of
law reviewed de novo (People v. Chaney, 379 Ill. App. 3d 524, 527 (2008)). Not every double
enhancement error requires remand for resentencing; where the record indicates that the trial
court’s reference to the improperly considered aggravating factor was so insignificant that it
did not lead to a greater sentence, a remand for resentencing is not required. People v. Csaszar,
375 Ill. App. 3d 929, 952 (2007).
¶ 92 In the present case, defendant contends comments made by the trial court during the
sentencing hearing indicate it made a double enhancement error by improperly considering the
victim’s death, a factor implicit in the murder. Specifically, the trial court stated:
“The factors in aggravation *** are as follows. Number one, whether or not the
defendant’s conduct caused or threatened serious physical harm. Here there can be
nothing more than a murder and not only a murder, it was accompanied by an
aggravated criminal sexual assault both penis to vagina and penis to anus. That
preceded the actual death of [the victim].”
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¶ 93 Our review of this comment indicates that the only time the trial court actually mentioned
the victim’s death was when it referred to the sexual assaults immediately preceding her
murder. In other words, the primary focus of the trial court’s comment was not on the victim’s
death but rather on the nature and circumstances of her murder, i.e., that it occurred in the
context of an “aggravated criminal sexual assault both penis to vagina and penis to anus.” The
trial court’s consideration of the nature and circumstances of the victim’s murder was not error.
See Saldivar, 113 Ill. 2d at 271.
¶ 94 To the extent that the trial court’s comment can be considered an improper reference to the
end result of the defendant’s conduct, i.e., the victim’s death, said comment was fleeting in
nature. Of much more concern to the trial court was the defendant’s prior criminal activity.
Specifically, when discussing the mitigating factors, the trial court stated:
“Whether the defendant’s criminal conduct was the result of circumstances
unlikely to recur, I can’t say that at all. Basically from the time the defendant was an
adult, even excluding his juvenile background, but from the time he got involved with
the adult system in November of 1991, he has been continuously involved without
taking really any break. He was sent to the penitentiary for awhile, back to it again,
served seven felony convictions that he accumulated between 1991 and 2004, all of
them involving at some point a stint in the penitentiary.
In the earlier convictions as the pre-sentence investigation points out, he was given
probation concurrently by Judge Singer in November of 1991, and then there were
subsequent violations with penitentiary sentences and from there after, they’ve all been
penitentiary sentences. So, based upon that background, in fact I would say that the
defendant if he were allowed to be free ever again would most likely continue on in that
path and commit additional crimes.”
¶ 95 Later, when discussing the aggravating factors, the trial court stated:
“The defendant’s history of prior delinquency or criminal activity. That I already
alluded to. The defendant has shown that he has been in and out of the penitentiary
basically without much of a break at all from 1991 until this arrest on the first-degree
murder on offense. Minimum sentence after minimum sentence and still back out
committing additional crimes.
I certainly give weight to the fact there are seven prior felony convictions that in
and of itself is an enormous amount of aggravation in my view and it’s giving weight to
the fact that two of those prior convictions are significant crimes of violence. The
robbery started out in 1991 and the 1992 armed robbery where he received the
minimum sentence on a Class X felony of six years in the Department of Corrections.”
¶ 96 The trial court concluded:
“On November 20th, of 2003, [the victim] came home to her very modest and
simple apartment at 5216 West Crystal. She was walking into what was to become the
worst nightmare of her life. There was an individual who had broken into the home.
The testimony was he got 11 dollars to help with his drug habits, but instead of just
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taking what he could and fleeing back out the house through a window, he stayed and
was on the phone.
It was that fateful moment when she came in the door and he heard her come in and
he saw her reflection in the doorway and saw her come through the doorway, at that
point [defendant] had a choice to make. He could have fled either out the front door or
out the window that he came in or he could have stayed. And unfortunately for [the
victim and for defendant] he chose to stay. His decision was not to flee, his decision
was to take out a knife and lead her at knife point into her own bedroom. She was
ordered face-down and her nurse’s uniform, her pants were pulled down. She had a
sock placed in her mouth with elastic around it to keep it in place so she couldn’t secure
any help from anybody and he then proceeded to rape her vaginally as well as anally.
And he left her there. The photos of the victim that were introduced at trial show
her pretty much frozen in time, unlike most crime scene photos. She’s in the same
position she was in after he raped her from behind. Truly a horrific picture of this
defendant’s handiwork on that date and time.
*** [He] left her there with a gag in her mouth, a tube sock shoved in her mouth
[and] kept in there with her hands tied. It’s not mitigation he left her and didn’t at least
take it out and call 911. The relevance being whether she died in his presence or a few
minutes after he walked out the door, certainly was not his intent to get her any help.
*** I find that society really needs to be protected from [defendant]. As to the
offense of first-degree murder, I’m sentencing him to the maximum sentence of 60
years in the Department of Corrections, consecutive to [the two consecutive 25-year
terms for aggravated criminal sexual assault]. It’s my intent that you never ever walk
the streets of our community again. It’s my intent to keep the community safe from you
in your continuing course of criminal conduct.”
¶ 97 Our review of these comments again indicates that the trial court’s focus was not on the
victim’s death but rather on the physical manner in which the victim’s death was brought about
and on the nature and circumstances of the offense, all of which are proper considerations
during sentencing. Id. The trial court committed no reversible error in its consideration of the
relevant factors in aggravation and mitigation, and committed no abuse of discretion in the
sentence imposed. See People v. Beals, 162 Ill. 2d 497 (1994) (Where the trial court imposed
an extended-term murder sentence, its statement during the sentencing hearing that the
defendant’s conduct “ ‘caused the ultimate harm. It caused the loss of a human life’ ” did not
necessitate a remand for resentencing where the statement was “a general passing comment”
and where the trial court properly relied on other aggravating factors in sentencing defendant.).
¶ 98 For the foregoing reasons, we affirm the trial court.
¶ 99 Affirmed.
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