People v. Sutherland ( 2006 )

Docket No. 99047.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CECIL
S. SUTHERLAND, Appellant.
Opinion filed September 21, 2006.–Modified Upon Denial of
Rehearing December 4, 2006.
JUSTICE FITZGERALD delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, Kilbride, and
Garman concurred in the judgment and opinion.
Justices Karmeier and Burke took no part in the decision.
OPINION
Following a jury trial in St. Clair County, defendant Cecil
Sutherland was convicted of aggravated kidnaping (Ill. Rev. Stat.
1987, ch. 38, par. 10–2(a)(2)), aggravated criminal sexual assault (Ill.
Rev. Stat. 1987, ch. 38, par. 12–14(b)(1)), and first degree murder
(Ill. Rev. Stat. 1987, ch. 38, par. 9–1(a)(1)). The circuit court
sentenced defendant to death. This appeal followed. 134 Ill. 2d R.
603.
For the reasons discussed below, we affirm defendant’s
convictions and death sentence and remand for additional sentencing.
BACKGROUND
On July 2, 1987, the body of 10-year-old Amy Schulz was
discovered on a dirt road in rural Jefferson County. Amy had been
strangled, her throat had been slit, and she had been sexually
assaulted. Amy had been missing from her Kell, Illinois, home in
neighboring Marion County since the prior evening.
In early October 1987, four months after Amy’s murder,
defendant (then 32 years old) left his Dix, Illinois, home in Jefferson
County and drove to Montana. Later that month, federal authorities
arrested defendant on charges unrelated to this case. Based in part on
information provided by Montana authorities, on October 22, 1987,
Jefferson County police officers secured a search warrant from a
Jefferson County judge authorizing a search of defendant’s person,
vehicle, and possessions. At the time, defendant was in federal custody
at the Missoula County jail in Missoula, Montana, and defendant’s
vehicle was being held by federal park rangers at Glacier National
Park in Montana. Jefferson County police officers flew to Montana,
where they executed the warrant, seizing defendant’s vehicle and
personal property. They also obtained samples of defendant’s head,
beard, chest and pubic hair. Jefferson County police officers also
arranged for transfer of defendant’s vehicle to Illinois. On October 28,
1987, Jefferson County police officers secured a second warrant
authorizing a search of the vehicle, which police executed in Illinois.
Eight months later, in June 1988, defendant was indicted in
Jefferson County for the aggravated kidnaping, aggravated criminal
sexual assault, and first degree murder of Amy Schulz. Defendant filed
a motion to suppress all evidence seized in Montana pursuant to the
October 22, 1987, search warrant. The circuit court denied the motion
to suppress.
Following a change of venue to Richland County, a jury
convicted defendant of all charges and subsequently found him eligible
for the death penalty. The circuit court sentenced defendant to death.
On direct appeal to this court, we affirmed defendant’s convictions
and sentence. People v. Sutherland, 155 Ill. 2d 1 (1992). Defendant
-2-
filed a petition for a writ of certiorari to the United States Supreme
Court, which was denied. Sutherland v. Illinois, 510 U.S. 858, 126 L.
Ed. 2d 130, 114 S. Ct. 170 (1993).
Defendant thereafter filed a postconviction petition raising
numerous claims. The trial court held an evidentiary hearing on certain
claims, but ultimately dismissed the petition. On appeal to this court,
we reversed defendant’s convictions and sentence and remanded for
a new trial, citing ineffectiveness of trial counsel and improper
prosecutorial argument. People v. Sutherland, 194 Ill. 2d 289, 299-
300 (2000).
On remand, venue was transferred to St. Clair County. Prior to
trial, defendant filed several motions challenging the validity of the
search warrants issued on October 22 and October 28, 1987, and
requesting suppression of all evidence seized pursuant to the warrants.
The trial court denied such motions.
In May 2004, defendant’s retrial began. Briefly, the State offered
evidence that gold fibers found on the victim’s clothing were
consistent with the carpeting and upholstery in defendant’s vehicle,
and that red fibers found in defendant’s vehicle were consistent with
the victim’s clothing. The State also offered evidence that two pubic
hairs found on the victim’s buttocks were microscopically consistent
with defendant’s pubic hair and that the two hairs had the same
mitochondrial DNA (mtDNA) as defendant.1 The State further offered
evidence that animal hairs found on the victim’s clothing could have
originated from defendant’s dog and that tire impressions found at the
crime scene could have been made by defendant’s vehicle. Defendant
countered with evidence that he argued demonstrated that Amy
Schulz was murdered by William Willis, her step-grandfather and a
convicted pedophile. Defendant also challenged the State’s hair and
fiber evidence and introduced evidence that, at the time of Amy’s
abduction, he was watching a movie with his brother.
1
Although the expert testimony concerning the mtDNA evidence will be
set forth later in this opinion, we note that mtDNA, which is identical for all
persons in the same maternal line, is distinct from nuclear DNA, which is
generally considered a unique identifier.
-3-
After five weeks of testimony, the jury returned a verdict of guilty
on all charges. Defendant waived a sentencing hearing and, along with
the State, presented the circuit court with an agreed recommended
sentence of death. The circuit court, after finding defendant death
eligible, accepted the recommendation and sentenced defendant to
death. Defendant’s appeal lies directly to this court. 134 Ill. 2d R. 603.
ANALYSIS
Defendant argues that the trial court erred by declining to hold an
evidentiary hearing on his motions to suppress evidence recovered
pursuant to the two search warrants issued in October 1987; failing to
hold an evidentiary hearing on his motions challenging the affidavits
that supported the two search warrants; allowing the State to
introduce evidence recovered from defendant’s vehicle after the State
failed to produce the vehicle pursuant to defendant’s discovery
request; allowing the prior testimony of crime-scene technician
Richard Caudell, who died before defendant’s retrial, to be read to the
jury; allowing the State to call Sherry Witzel, a member of defendant’s
prior defense team, as a rebuttal witness; and allowing the State to
introduce certain DNA evidence. Defendant also argues that the
State’s evidence failed to establish his guilt beyond a reasonable
doubt.
I. Motions to Suppress Evidence
Defendant argues that the trial court committed reversible error
by declining to hold an evidentiary hearing on his motions to suppress
evidence seized pursuant to the search warrants issued on October 22
and October 28, 1987. The State argues that the trial court did not
abuse its discretion in denying defendant’s request for an evidentiary
hearing on his motions to suppress. According to the State, the
doctrine of collateral estoppel barred defendant from relitigating issues
raised and decided in his first trial and not thereafter challenged on
appeal. See People v. Enis, 163 Ill. 2d 367 (1994).
When reviewing a motion to suppress evidence, “we will accord
great deference to the trial court’s factual findings, and we will reverse
those findings only if they are against the manifest weight of the
evidence; however, we will review de novo the ultimate question of
-4-
the defendant’s legal challenge to the denial of his motion to
suppress.” People v. Sorenson, 196 Ill. 2d 425, 431 (2001), citing In
re G.O., 191 Ill. 37, 50 (2000). The applicability of the collateral
estoppel doctrine, a purely legal question, is also subject to de novo
review. See People v. Daniels, 187 Ill. 2d 301, 307, 320-21 (1999);
People v. Powell, 349 Ill. App. 3d 906, 909 (2004).
In People v. Enis, 163 Ill. 2d 367 (1994), cited by the State, we
considered whether the trial court erred when, on remand for a new
trial, the court refused to reconsider its earlier denial of the
defendant’s motion to quash arrest and suppress evidence. We found
no reversible error. We reasoned that the defendant could have
challenged the denial of his suppression motion in his first appeal and
that the defendant’s failure to do so justified the trial court’s refusal
on remand to reconsider its earlier ruling. “Where a defendant’s
conviction has been reversed for trial error, and the cause is remanded
for a new trial, the doctrine of collateral estoppel bars the relitigation
of a pretrial ruling, such as a motion to suppress, unless the defendant
offers additional evidence or there are other special circumstances.”
Enis, 163 Ill. 2d at 386. In Enis, no special circumstances existed that
would have warranted relitigation of the defendant’s pretrial motion.
Thus, we held that the trial court did not err in its refusal to revisit its
earlier rulings. Enis, 163 Ill. 2d at 387. Accord People v. Gilliam, 172
Ill. 2d 484, 505-06 (1996); People v. Jones, 219 Ill. 2d 1, 19-23
(2006).
Based on our review of the record in the present case, we
conclude that the issues raised in defendant’s suppression motions
filed on remand were previously raised and litigated in defendant’s
first trial and that the doctrine of collateral estoppel bars relitigation
of the trial court’s earlier pretrial ruling. We also conclude that
defendant has failed to identify special circumstances or additional
evidence that would warrant relitigation. Accordingly, the trial court
did not err in declining to hold an evidentiary hearing on defendant’s
suppression motions.
The record discloses that prior to defendant’s first trial, defendant
filed a motion to suppress evidence seized pursuant to the October 22,
1987, search warrant. That warrant, issued by a Jefferson County
judge, authorized the seizure of certain evidence located in Montana,
including defendant’s vehicle, clothing and hair samples. The affidavit
-5-
furnished by Officer Michael Anthis in support of the search warrant
states in relevant part as follows:
“[Amy Schulz] was last seen alive at approximately 9:00 p.m.
[on July 1, 1987] at 4th and Jefferson Streets in Kell, Illinois.
*** At approximately 9:00 p.m. Schulz neighbor Kathy
Simmons stated she saw Amy Schulz walk south on Jefferson
St. *** About five minutes later Simmons saw a tan colored
car with rust spots go south on Jefferson St., in the same
direction Amy Schulz was walking. Amy Schulz was never
seen alive again.
On July 2, 1987, Amy Schulz[’s] body was found
alongside a rural road in Jefferson County ***. Amy had
been sexually assaulted and murdered. *** A footprint was
found on her body and nearby and the ground print was
identified as coming from a Texas Steer brand boot sold by
K-Mart stores.
A tire print was found near Amy Schulz[’s] body and a
cast of that print was analyzed by the Illinois State Police
Forensic Science Laboratory and revealed it to be a ‘Falls
Persuader’ regular bias tire made by Cooper Tire Company.
It was determined that this tire print belonged to the right
side of the vehicle suspected of transporting Amy Schulz to
the crime scene. Hairs were found on her body and the
laboratory determined them to belong to a white male.
That on October 10, 1987 a tan 1977 Plymouth Fury
registered to Cecil S. Sutherland, a white male, was found
abandoned in the Glacier National Park, Montana. Cecil S.
Sutherland was arrested on 10-21-87 by the Federal
authorities. Among his possessions were knives contained in
a duffle bag and Texas Steer brand boots. His vehicle had a
‘Falls Persuader’ regular bias tire on the passenger front side
of his vehicle.
His mother, Joan Sutherland, confirmed that Cecil
Sutherland was living in Kell, Illinois on July 1st and 2nd,
1987. His former employer *** located in Jefferson County
Illinois confirmed that he worked on July 1, 1987 from 8:00
a.m. to 4:00 p.m. He did not work on July 2, 1987.”
-6-
On October 24, 1987, Jefferson County police executed the warrant
in Montana, seizing the vehicle, hair samples from defendant, and
other items.
In defendant’s suppression motion filed prior to his first trial,
defendant raised several issues regarding the Montana search: (1) the
search warrant complaint and supporting affidavit did not allege facts
constituting probable cause; (2) the warrant, issued in Jefferson
County, Illinois, had no legal validity outside of Illinois, the Jefferson
County police had no authority to serve the warrant outside of Illinois,
and no warrant or other process was sought or obtained from the
State of Montana; (3) the Illinois officers did not advise defendant of
his Miranda rights when they questioned defendant about the case and
refused his request for an attorney; (4) the officers illegally executed
the warrant by threat of force and against the defendant’s will, taking
head, beard and pubic hair samples from defendant; (5) the officers
impounded defendant’s vehicle and caused it to be transported back
to Illinois and also seized defendant’s clothing, boots and other
personal belongings without defendant’s knowledge or consent; and
(6) the search was conducted without the knowledge of federal
authorities, in whose custody was defendant at the time of the search.
In opposition to defendant’s suppression motion, the State
argued that defendant lacked standing to challenge the search of the
vehicle because defendant had abandoned the vehicle and therefore
had no legitimate expectation of privacy in the vehicle. The State
further argued that because defendant was in federal custody, the
State of Montana had no jurisdiction or interest in the case and that
Illinois law should govern the admissibility of evidence seized
pursuant to the warrant. In the alternative, the State argued that even
if the warrant was invalid, the good-faith exception to the exclusionary
rule rendered the evidence seized in Montana admissible at trial.
An evidentiary hearing was held on defendant’s motion to
suppress. The same judge who issued the October 22, 1987, warrant
presided at the hearing. Defendant called David Brundage, a forensic
scientist with the Illinois State Police. Brundage testified that the boot
print found at the crime scene was made by a Texas Steer brand boot,
sold only by K mart stores. Brundage also testified that he examined
a plaster cast of a tire print from the crime scene and concluded that
the tire track was made by a Cooper Tire brand tire.
-7-
Defendant also testified at the suppression hearing. According to
defendant, around the first of October 1987, he left Illinois and drove
to Montana in his 1977 Plymouth Fury, stopping only for gas.
Defendant had no particular destination and ended up in Kalispell,
Montana, in Glacier National Park. On October 10, 1987, after
spending one night in the park, his car ran out of gas. Defendant
locked his car and left it in the park. Defendant left a note in the car,
which read:
“Car out of gas. I’m broke. Took what I could with me
and got a ride back to the south. Will not be back for car.
Please call one or both of the numbers on the front or back of
this tablit [sic], let them deside [sic] what to do with the car
and what’s left inside. Title to car is in glove box. Title has
been signed over to my folks.”
Defendant testified that he had no further use for the vehicle and that
it belonged to his parents.
Defendant took a makeshift backpack containing clothes and
other items and secured a ride south. A day or two later, he headed
back north and spent at least a week and a half “living off the land” in
the park. Defendant was subsequently arrested by federal agents and
ultimately pleaded guilty to attempted murder of a federal officer.
Defendant further testified that in late October 1987, while he
was in federal custody in the Missoula County, Montana, jail, Officers
Anthis and Parker, from Jefferson County, Illinois, served defendant
with an Illinois warrant. No federal or Montana state authorities were
present at the time. According to defendant, after learning the purpose
of the officers’ visit, he requested a lawyer. Anthis and Parker refused
the request and told defendant that if he did not voluntarily provide
hair samples, they would call in other officers and remove the hair
themselves. Defendant protested, but provided the samples. Defendant
never gave consent for the removal of his personal belongings or for
the transport of the vehicle to Illinois.
The State called Eric Morey and Officer Anthis. Morey testified
that in 1987 he was a law enforcement ranger with the National Park
Service. On the morning of October 10, 1987, he observed a vehicle
in a remote area of Glacier National Park. Frost covered most of the
vehicle, indicating to Morey that it had been left there overnight.
-8-
Through the driver side window, Morey observed a small spiral
notebook, open on the seat, with a note that read: “Read page one and
two. Then please due [sic] what I ask. Know [sic] have my car towed
in. Thank you.” The note was signed “Steve.”2 Morey gained entry to
the car, which was locked, read pages one and two of the note, and
located the vehicle title. Morey contacted defendant’s mother and a
brother, Michael Sutherland, who expressed no interest in the vehicle.
Defendant’s brother told Morey that the Sutherlands would assign the
title to whoever wanted the vehicle. On October 11, Morey returned
to the vehicle with another ranger. The vehicle was driven to the park
district storage facility and secured. The contents were later
inventoried. On October 24, 1987, the vehicle was turned over to
Illinois officers.
Officer Anthis, with the Jefferson County sheriff’s department in
Mt. Vernon, Illinois, testified that on October 24, 1987, he flew to
Montana with special agent Charles Parker of the Illinois State Police
and David Brundage. Anthis verified that he executed the warrant on
October 24, 1987, in Missoula County, Montana. Anthis identified the
affidavit he provided in support of the warrant and testified that he
made no material misrepresentations in the affidavit, the information
he provided therein was correct to the best of his knowledge and
belief, and he executed the warrant pursuant to the direction of the
court that issued the warrant.
Anthis further testified that on October 23, 1987, in Kalispell,
Montana, he met with the federal officer investigating the Montana
case against defendant and explained the purpose of his visit. The
following day, he and Parker flew to Missoula, Montana, where they
contacted prison authorities and arranged to meet with defendant in
an interview room at the county jail where defendant was in custody.
No other officers were present at the interview and no written
approval to conduct a search of defendant was obtained from any
judicial authority in Montana.
According to Anthis, he and Parker explained to defendant that
they were conducting an investigation in Illinois. Without being asked
2
Defendant’s full name is Cecil Steven Sutherland. The record indicates
that friends and family called defendant by his middle name.
-9-
about his whereabouts on July 1, 1987, defendant volunteered his
itinerary for that date. He declined to answer further questions,
however, and requested an attorney. Anthis gave defendant a copy of
the search warrant and collected hair samples from defendant’s head,
beard, chest and pubic area without protest. Defendant pulled the
hairs himself and placed them in the envelopes Anthis provided. Anthis
denied threatening to use force to obtain the hair samples. Anthis also
testified that he and Parker looked over defendant’s clothing and
personal items held by authorities in Montana. Anthis recalled that
defendant might have had among his possessions a pair of Texas Steer
brand boots, but that the boots may have been a different style from
the one that had left the print at the crime scene. That same day,
Anthis and Parker obtained possession of defendant’s vehicle from
authorities in Glacier National Park. Anthis confirmed that the right
front tire was a Cooper Tire brand Falls Persuader tire. Anthis did not
obtain permission from defendant or his family to take the vehicle.
Following argument, the trial court denied defendant’s motion to
suppress. In its written order, the court made several findings: (1) the
police officers involved acted in good faith in applying for the search
warrant and in executing it; (2) defendant abandoned his vehicle in
Montana and therefore had no right to privacy in his vehicle and no
standing to object to a search of his vehicle; (3) the search warrant
was supported by probable cause as evinced by the facts contained
within the petition and affidavit, specifically by David Brundage’s
identification of a Texas Steer brand boot print and Falls Persuader
tire-track impression made at the crime scene, and the fact that
Montana authorities informed the Jefferson County sheriff’s
department that defendant had a Falls Persuader tire on his vehicle and
Texas Steer brand boots in his possession in Montana; (4) defendant
had no right to privacy in his boots, which had been inventoried by the
jail and were being held in the jail; (5) the hair samples were obtained
from defendant pursuant to a validly issued search warrant without
further coercion, threats or force; and (6) the search warrant was valid
in Montana because it was properly obtained and because defendant
was in federal custody at the time it was served. In its oral ruling, the
trial court also noted that even if the hair samples were not given
voluntarily, “it wouldn’t matter because the State would have gotten
-10-
the samples later on anyway” because the search of the vehicle was
valid.
Although defendant challenged the trial court’s denial of his
suppression motion in his posttrial motion for a new trial, he did not
raise the issue on direct appeal following his first trial. Defendant also
did not argue in his postconviction petition that appellate counsel was
ineffective for failing to raise the issue on direct appeal.
Following remand for a new trial, defendant filed three motions
seeking to suppress the evidence seized pursuant to the October 22,
1987, warrant. Specifically, defendant filed a motion to quash arrest
and suppress evidence, directed to the hair samples taken from
defendant while he was in custody in Montana; a motion to suppress
two pocket knives obtained from federal authorities in Montana; and
a motion to suppress evidence obtained from defendant’s vehicle as a
result of the Montana search. Defendant also filed a separate motion
to suppress evidence seized pursuant to the October 28, 1987, search
warrant. That warrant, issued by the same Jefferson County judge that
issued the October 22 warrant, authorized only a search of
defendant’s vehicle, which had already been transported to Jefferson
County.
In response, the State argued that the issues raised in defendant’s
four new suppression motions were previously litigated at his first trial
and not challenged on appeal, and that the doctrine of collateral
estoppel barred relitigation. The new judge, to whom the case had
been assigned on remand, agreed with the State and denied the four
suppression motions. As stated earlier, we find no error in the trial
court’s application of the collateral estoppel doctrine under the
circumstances present here.
In each of the three suppression motions challenging the Montana
search that defendant filed on remand, he essentially renewed the
arguments he had made in his prior suppression motion. That is,
defendant argued that the search was without his consent; the Illinois
police had no authority to act as law enforcement officers in Montana;
an Illinois warrant is valid only within the State of Illinois; the Illinois
police officers did not attempt to secure a search warrant from an
appropriate federal magistrate or judge in Montana; and state search
warrants have no force or effect on federal property. Each of these
claims was litigated in the earlier suppression motion hearing.
-11-
The only issue not expressly litigated in the earlier hearing was
defendant’s claim, raised only in his motion to suppress evidence
seized from the Montana vehicle search, that “[a] state search warrant
authorizing a search on federal property, or in another state, from an
objective standard, would put a police officer on notice that the
warrant was invalid on its face.” This ground for suppression of
evidence was available to defendant at the time of his original
suppression hearing. “To allow defendant on remand to raise
additional grounds not originally presented to the trial court for
suppression of evidence based on the same search and seizure would
foster piecemeal appeals contrary to the promotion of judicial
economy.” People v. Abata, 165 Ill. App. 3d 184, 188 (1988); see
also People v. Page, 155 Ill. 2d 232, 250 (1993) (“application of
collateral estoppel in the suppression context advances many of the
same policy goals that underlie the doctrine generally, such as the
conservation of judicial resources and the avoidance of repetitive
litigation”).
Considerations of judicial economy aside, the trial court’s earlier
ruling that the police officers acted in good faith encompasses this
new ground for suppression. Defendant’s failure, however, to
challenge on appeal the trial court’s good-faith finding barred
relitigation on remand. See Enis, 163 Ill. 2d at 386. Further, because
defendant also failed to challenge the trial court’s earlier ruling that
defendant had abandoned his vehicle and therefore had no legitimate
expectation of privacy in the vehicle, the issue of whether the officers
were on notice that the warrant was facially invalid is moot. See
People v. Hoskins, 101 Ill. 2d 209, 220 (1984) (“the protections
against unreasonable searches and seizures do not extend to
abandoned property, as the right of privacy in the property has been
terminated”).
With respect to defendant’s suppression motion challenging the
search of the vehicle in Illinois pursuant to the warrant issued on
October 28, 1987, defendant argues that this was a “new and original
motion” and thus not subject to the bar of collateral estoppel.
Although a motion challenging the Illinois vehicle search was not filed
prior to defendant’s first trial, the success of defendant’s new motion
was necessarily dependent on defendant’s capacity to challenge the
search. As already noted, however, defendant did not appeal the trial
-12-
court’s earlier ruling that defendant, having abandoned the vehicle,
had no legitimate expectation of privacy in it. Accordingly, the trial
court, on remand, did not err in declining to entertain this motion.
Defendant next claims that special circumstances exist which
warrant relitigation of his motion to suppress. See Enis, 163 Ill. 2d at
386. Defendant directs our attention to this court’s opinion on
postconviction review in which we held that defendant’s original trial
counsel was ineffective in failing to investigate and present certain
boot and tire evidence and defendant was entitled to a new trial. See
Sutherland, 194 Ill. 2d 298-99. Defendant argues that this court’s
holding that counsel’s representation at trial was ineffective rendered
counsel’s representation prior to trial suspect and negated any
application of collateral estoppel on remand. According to defendant,
this court’s decision ordering a new trial should have alerted the trial
judge on remand to permit defendant to renew his motions to
suppress. Defendant further argues that a “new revelation” exists,
namely, trial counsel’s incompetence at the suppression motion
hearing, which deprived him of a full and fair hearing. See Enis, 163
Ill. 2d at 387.
This court has recognized an exception to the bar of collateral
estoppel where “special” or “exceptional” circumstances exist. Enis,
163 Ill. 2d at 386; Gilliam, 172 Ill. 2d at 506. Special circumstances
have been found where a defendant is acquitted and thereby denied the
opportunity to appeal the trial court’s ruling. In such a case, collateral
estoppel will not bar relitigation of the trial court’s ruling in a
subsequent proceeding. People v. Mordican, 64 Ill. 2d 257, 261
(1976). Similarly, where the evidence a defendant unsuccessfully
sought to suppress in his first trial was not relied upon by the State,
the defendant will not be precluded, on remand, from relitigating the
trial court’s ruling because the issue would have been considered
moot in his first appeal. See People v. Savory, 105 Ill. App. 3d 1023,
1027-28 (1982); see also People v. Smith, 72 Ill. App. 3d 956, 962
(1979) (holding that defendant was not precluded from relitigating
issues on remand concerning the validity of a search warrant where
issues were presented to, but not decided by, the appellate court).
Here, defendant has identified no special circumstances that
prevented him from seeking or obtaining review of the trial court’s
denial of his suppression motion on direct appeal from his first trial or
-13-
in his petition for postconviction relief. Nor has defendant identified
any case law supporting his argument that trial counsel’s
ineffectiveness in failing to investigate and present certain evidence
during his first trial “negates” the applicability of the collateral
estoppel doctrine on remand.
Defendant’s further claim that he did not receive a full and fair
hearing on his suppression motion is unavailing. Generally, the
doctrine of collateral estoppel will only be applied if the party to be
estopped had a “ ‘full and fair opportunity to litigate the issue.’ ”
People v. Pawlaczyk, 189 Ill. 2d 177, 189 (2000), quoting Vroegh v.
J&M Forklift, 165 Ill. 2d 523, 532 (1995); see also Enis, 163 Ill. 2d
at 387 (“[d]efendant does not suggest that he did not receive a full and
fair hearing on his pretrial motions”). Here, defendant’s claim that he
did not receive a full and fair hearing is premised on the alleged
incompetence of original trial counsel at the suppression hearing. This
issue, however, could have been raised on direct appeal from
defendant’s first trial, but was not. See Sutherland, 155 Ill. 2d at 12-
25. We note that defendant did claim, in his postconviction petition,
that “[t]he defense lost the ill-planned motion [to suppress] due to the
lack of appropriate defense witnesses and attorney skill.” Defendant
did not pursue this claim on appeal from the trial court’s denial of
postconviction relief. Issues that could have been raised on appeal, but
were not, will be deemed forfeited. People v. Blair, 215 Ill. 2d 427,
443-44 (2005). Defendant cannot now avoid the effect of this
forfeiture and, in turn, the bar of collateral estoppel, by recasting the
issue of trial counsel’s ineffectiveness at the suppression hearing as a
“new revelation.”
Defendant also argues that additional evidence exists which
warrants relitigation of his motion to suppress. Where a defendant, on
remand, points to “newly discovered evidence” that would have been
pertinent to the trial court’s ruling on the defendant’s motion to
suppress, relitigation of the motion may be warranted and the bar of
collateral estoppel will not apply. Gilliam, 172 Ill. 2d at 506, citing
People v. Holland, 56 Ill. 2d 318, 321 (1974). On remand in the trial
court, defendant asserted that a “litany of new evidence” exists which
warranted relitigation of his motion. The trial court did not find the
new matter sufficient to overcome the bar of collateral estoppel. We
now consider this evidence.
-14-
Montana Law
Defendant first asserts that the information that no Montana
statute or case law gives validity to an Illinois search warrant was not
provided to the Jefferson County judge when he was asked to sign the
two search warrants in October 1987. Defendant explains that this
information was first obtained from a Montana state judge in June
2002.
Information that no Montana law validates an out-of-state
warrant would not have been pertinent to defendant’s motion to
suppress evidence seized pursuant to the warrant that was executed
in Illinois. Although such information would have been pertinent to
defendant’s motion to suppress evidence seized in Montana, such
information can hardly be considered “evidence” in the traditional
sense of the word. See generally Black’s Law Dictionary 595 (8th ed.
2004) (defining evidence as “[s]omething (including testimony,
documents, and tangible objects) that tends to prove or disprove the
existence of an alleged fact”).
Even if we considered Montana law “evidence,” Montana law
was available for research and review at the time of the original
suppression hearing. Merely conducting such research at a later date
does not transform the information thus gathered into new evidence.
Although new legal precedent could provide a basis for relitigating a
suppression motion (Enis, 163 Ill. 2d at 387), defendant does not cite
any such precedent.
In a related vein, defendant asserts that Officer Anthis and
Jefferson County prosecutors were aware, at the time application for
the warrants was made, that an Illinois search warrant may not be
valid in Montana. Defendant cites to testimony from Anthis’
deposition, taken in March 2002. Anthis testified that “preliminary
discussions” about the validity of the warrant in Montana “may have”
taken place in Illinois. He also testified that, “in talking to the officials
out in Montana, they didn’t know if the local judge would allow it [the
search] or if we would have to reapply in the State of Montana.”
Defendant also cites to testimony from the May 2002 deposition of
Officer Parker, who accompanied Anthis to Montana. Parker states,
“There was general conversation about whether the search warrant
would be honored out there [in Montana].” Defendant asserts that this
-15-
information was not provided to the judge when he was asked to sign
the two warrants.
Assuming, without deciding, that the officers’ deposition
testimony constitutes new evidence that was not available at the time
of the suppression hearing, such evidence would not warrant
relitigation of the suppression motion. Evidence that the officers
harbored concerns about the validity of an Illinois warrant in Montana
would not impact the issue of whether the warrant was supported by
probable cause, or whether the warrant was, as a matter of law, valid
in Montana.
Kell Park Incident
Defendant cites testimony from defendant’s second trial
concerning an incident at Kell Park on June 19, 1988. On that date, a
group of citizens held a public forum to give their reasons why they
believed defendant, who had not yet been indicted, was not involved
in Amy Schulz’s abduction and murder. As the speakers tried to
address the crowd, a few individuals blew air horns and shouted.
Officers Anthis and Parker were present in the park but did nothing to
prevent the “disturbance” so the speakers could be heard. According
to defendant, “[t]he failure of Anthis and Parker to act reflects
negatively on their impartiality in their investigation of [defendant].”
Assuming that Anthis and Parker had a duty to prevent the so-
called disturbance at Kell Park, we disagree that their failure to act
necessarily “reflects negatively” on their investigation of defendant. In
any event, this new evidence is irrelevant to whether probable cause
existed for the issuance of the search warrants eight months earlier.
Uninvestigated Leads
Defendant cites evidence that Jefferson County police failed to
pursue two leads that someone other than defendant murdered Amy
Schulz. The first lead involved a report by three men who were in Kell
on the evening of July 1, 1987. Approximately 10 minutes before
Dennis Schulz, Amy’s father, arrived in town looking for Amy, the
witnesses saw a man driving a gray pickup truck pull a child up off the
street and across his lap into the truck. The truck drove east out of
Kell. Police created a composite drawing of the driver. Defendant
-16-
notes that Officer Anthis testified at his deposition that it would have
been logical to pursue this lead, and that Officer Parker testified at his
deposition that he was not aware of any reports indicating that the
lead was pursued. The second lead involved a report to police in El
Dorado, Illinois, that a man had confessed to killing Amy Schulz.
According to defendant, although this information was passed on to
Jefferson County police, no action was taken. Defendant argues that
information regarding these leads was not given to the judge when he
was asked to sign the two search warrants.
Assuming, arguendo, that the foregoing evidence constitutes new
evidence that was not available at the first suppression hearing,
defendant fails to explain in what way this evidence was pertinent to
the trial court’s ruling on the suppression motion.
Defendant’s Compliance With Search Warrant
Defendant asserts that Officers Anthis and Parker provided later
deposition and/or trial testimony that defendant provided hair samples
pursuant to the apparent authority of the Illinois warrant, not
voluntarily, and that defendant was not given Miranda warnings when
Anthis and Parker interviewed defendant in Montana. Defendant
states that this information was not provided to the judge at the
suppression motion hearing. We disagree.
Defendant testified at the suppression hearing that officers
advised him that because he was not under arrest they had no reason
to read him his rights. Officer Anthis did not contradict defendant’s
testimony or imply that he or Parker had, in fact, given defendant
Miranda warnings. Defendant also testified at the suppression hearing
that he challenged the authority of the Illinois warrant and initially
refused to allow Anthis and Parker to execute the warrant for the hair
samples. According to defendant’s testimony, he acquiesced in the
search only after the officers threatened to use force. Officer Anthis
gave a different account of these events, testifying at the suppression
hearing that defendant did not question the validity of the warrant and
was cooperative in providing the hair samples. The later testimony of
Anthis and Parker to which defendant now cites does not contradict
or add to the testimony that was presented at the suppression hearing
-17-
and thus does not provide a basis for relitigating the motion to
suppress.
Preparer of Warrant Documents
Defendant asserts that Anthis and Parker testified during their
depositions that they had not typed or dictated the warrant affidavits
or the warrants themselves and had no idea who prepared these
documents. Defendant concludes: “Thus, the author of these
documents remains a mystery to this day.”
The gist of the testimony from Anthis and Parker is that they
could not recall, at the time of their depositions in 2002, who prepared
the warrants and supporting documents for the searches conducted in
1987. Assuming that the identity of the individual or individuals who
prepared the warrant documentation was somehow relevant to the
issues raised at the suppression hearing, we conclude that the officers’
failed memories on this point provide an insufficient basis to relitigate
defendant’s motion to suppress.
Tire Identification
Defendant cites deposition testimony from Anthis and Parker that
they did not know who provided the information to them, prior to the
drafting of the warrant affidavit, that the tire print at the crime scene
was made by a Cooper Tire brand Falls Persuader tire. Defendant
concludes that the source of this information also “remains a mystery
to this day.” Evidence that the officers could not recall, 15 years later,
who provided the tire identification information incorporated into the
warrant affidavit is not grounds to relitigate defendant’s motion to
suppress.
Defendant also argues that police misled the judge who issued the
warrants about the tire print identification by failing to disclose in the
warrant affidavit that Cooper Tire had already concluded that the tire
print was not made by a Cooper Tire brand tire. Defendant cites two
letters in the record dated September 25 and September 30, 1987, sent
by Cooper Tire to David Brundage, the forensic scientist who
analyzed the tire print. The letters state, respectively, that nothing in
Cooper Tire’s files “even looks close to this impression,” and that the
tire could be a “Goodyear Custom Super Cushion.” Assuming,
-18-
arguendo, that the two letters were not available to the defense at the
time of the first suppression hearing, we conclude that this new
evidence was insufficient to warrant relitigation of defendant’s motion
to suppress.
David Brundage testified at the suppression hearing about the
method he used to identify the brand and style of tire that left the print
at the scene. After narrowing down the number of possible
manufacturers to three or four, Brundage contacted numerous dealers,
manufacturers and distributors for assistance. He admitted that not all
the responses he received verified his own conclusion that the print
could have been made by a Cooper Tire brand tire. Brundage also
testified that he received a telephone call from the product services
manager at Cooper Tire confirming that the print could have come
from a Cooper Tire brand tire. According to Brundage, that telephone
call was received prior to October 22, 1987. The two earlier letters
defendant cites do not necessarily contradict Brundage’s testimony.
Thus, we find no error in the trial court declining to revisit this matter.
Warrant Affidavit for the Illinois Vehicle Search
Defendant also contends that police used misleading information
to obtain the October 28, 1987, warrant which authorized the search
of defendant’s vehicle after it had been transported to Illinois.
Particularly, defendant asserts that police misled the judge who
reviewed the warrant affidavit into thinking that defendant’s boots
could have left the print found at the crime scene despite the fact that
police knew, on October 28, 1987, having inspected defendant’s boots
in Montana, that they could not have left the print. Defendant also
asserts that police misled the judge into believing that defendant’s
vehicle was similar to the car seen by witness Cathy Simmons on the
night Amy disappeared, despite the fact that, contrary to Simmons’
description, defendant’s vehicle did not have rust spots, and
defendant’s vehicle had a different taillight configuration. Defendant
buttresses this claim by citing to a May 2002 interview with Simmons
in which she reported, after viewing photographs of defendant’s
vehicle, and the artist’s sketch of the taillight assembly of the car she
saw on the night of July 1, 1987, that defendant’s vehicle was not the
car she saw that night in Kell.
-19-
We are not persuaded that information concerning the boots and
vehicle identification constitutes newly discovered evidence.
Assuming, however, that this evidence was unavailable at the time of
the earlier suppression hearing, we nonetheless conclude that such
evidence provides an insufficient basis to revisit defendant’s
suppression motion. Defendant’s argument assumes that he had a
legitimate expectation of privacy in the vehicle to which fourth
amendment protection would apply. But as already noted, the trial
court determined that defendant had abandoned the vehicle.
“ ‘Abandoned property is not subject to Fourth Amendment
protection.’ ” People v. Pitman, 211 Ill. 2d 502, 519 (2004), quoting
United States v. Basinski, 226 F.3d 829, 836 (7th Cir. 2000).
Furthermore, because defendant did not seek review of this ruling in
his direct appeal from his first trial or in his postconviction petition,
defendant has forfeited review. See Blair, 215 Ill. 2d at 443-44.
Accordingly, his present claim challenging the search of the vehicle in
Illinois is rendered moot.
False Information in Affidavit
Defendant also argues that the search warrant affidavit contained
numerous falsehoods and omitted statements which misled the judge
into finding probable cause to issue both the October 22 and October
28 search warrants. Defendant suggests that if an affidavit with the
correct information had been submitted, the judge would not have
found probable cause.
We have reviewed the “corrected” version of the warrant
affidavit submitted by defendant, and note that some of defendant’s
additions to the affidavit include information the police first obtained
during their trip to Montana. For example, defendant has added
language indicating that the Texas Steer brand boots, which were
among defendant’s possessions in Montana, “were a different style”
and the “imprints did not match the boot imprint found at the crime
scene.” Defendant also added language stating that the “rear light
configuration” on defendant’s vehicle, which was first viewed in
Montana, was “different from the rear lights observed by witness
Simmons” on July 1, 1987. Thus, defendant’s argument that the
corrected version of the affidavit would not have supported a probable
cause finding for the issuance of a search warrant can only apply to
-20-
the October 28 warrant obtained after police returned from Montana
and not the earlier warrant. With this limitation, we consider
defendant’s argument.
The purported corrections that defendant has made to the
affidavit do not necessarily involve evidence that was not available at
the time of the earlier suppression hearing. Only “newly discovered
evidence” will justify a departure from the collateral estoppel doctrine.
Gilliam, 172 Ill. 2d at 506. This aside, we find defendant’s present
claim is moot. The warrant issued on October 28, 1987, authorized a
search only of the vehicle, not defendant’s person. As already noted,
however, defendant’s ability to challenge the search of the vehicle is
dependent on whether he had a legitimate expectation of privacy in the
vehicle at the time of the search. The trial court determined this issue
adversely to defendant and defendant never sought review of that
ruling.
In summation, we find that the issues raised in defendant’s four
motions to suppress that were filed on remand raised issues previously
litigated in defendant’s motion to suppress filed prior to his first trial;
defendant failed to appeal the earlier denial of his motion to suppress;
and defendant has failed to identify special circumstances or newly
discovered evidence that would warrant relitigation of the trial court’s
earlier pretrial ruling. Thus, the trial court on remand did not err in
applying the collateral estoppel doctrine and declining to hold an
evidentiary hearing on defendant’s suppression motions.
II. Motions for Franks Hearing
In addition to the four suppression motions defendant filed on
remand, he also filed a motion seeking an evidentiary hearing,
pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98
S. Ct. 2674 (1978), to challenge the two search warrants. Defendant
alleged that Officer Anthis knowingly and intentionally, or with
reckless disregard for the truth, made several false statements and
omitted information from the warrant affidavit. Defendant also filed
an amended motion for a Franks hearing, alleging that the judge who
issued the search warrants was not neutral and detached, and that no
officer could have reasonably believed that the October 22, 1987,
search warrant was valid in Montana. The trial court, relying on its
-21-
earlier ruling denying defendant’s four suppression motions,
determined that a Franks hearing was not warranted. Defendant
argues that the trial court erred, requiring reversal of his convictions
or, in the alternative, a new trial.
The State responds that the issues raised in the Franks motions
were already litigated at the original suppression motion hearing and
defendant, therefore, is collaterally estopped from relitigating those
issues. Alternatively, the State argues that the allegations in
defendant’s motions did not warrant a Franks hearing. Although we
agree with the State that some overlap exists between the issues raised
in defendant’s earlier suppression motion and the issues raised in his
Franks motions, the issues are not identical. We therefore decline the
State’s invitation to apply estoppel principles with a broad brush to
the issues raised in defendant’s Franks motions and will consider the
issues on the merits.
In Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S.
Ct. 2674 (1978), the United States Supreme Court recognized a
limited right to challenge the veracity of the affidavit supporting a
search warrant. In order to overcome the presumption of validity that
attaches to a warrant affidavit and obtain a Franks hearing, a
defendant must make a “substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for
the truth, was included by the affiant in the warrant affidavit” and that
“the allegedly false statement is necessary to the finding of probable
cause.” Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct. at
2676. A “substantial preliminary showing” is made where the
defendant offers proof that is “somewhere between mere denials on
the one hand and proof by a preponderance on the other.” People v.
Lucente, 116 Ill. 2d 133, 152 (1987). If, after the alleged untruths in
the warrant affidavit are set aside, the remaining statements in the
affidavit are sufficient to establish probable cause, no hearing is
required. Franks, 438 U.S. at 171-72, 57 L. Ed. 2d at 682, 98 S. Ct.
at 2684. The principles underlying the Franks decision also apply
where information, necessary to a determination of probable cause, is
intentionally or recklessly omitted from the affidavit. People v.
Stewart, 105 Ill. 2d 22, 43 (1984). In such cases, “[t]he defendant
must show that the information omitted was material to the
determination of probable cause and that it was omitted for the
-22-
purpose of misleading the magistrate.” Stewart, 105 Ill. 2d at 44.
Omitted information is “material” where it is of such a character that
had it been included in the affidavit, it would have defeated probable
cause. People v. Hickey, 178 Ill. 2d 256, 282 (1997).
Affidavits must be viewed in a “commonsense,” not a
“hypertechnical,” manner. People v. Thomas, 62 Ill. 2d 375, 380
(1975), quoting United States v. Ventresca, 380 U.S. 102, 109, 13 L.
Ed. 2d 684, 689, 85 S. Ct. 741, 746 (1965); accord Hickey, 178 Ill.
2d at 285. Our function as the reviewing court is not to substitute our
judgment for that of the issuing magistrate but, rather, to ensure that
the magistrate had a substantial basis for concluding that probable
cause existed. Stewart, 105 Ill. 2d at 49, quoting Massachusetts v.
Upton, 466 U.S. 727, 732-33, 80 L. Ed. 2d 721, 727, 104 S. Ct.
2085, 2088 (1984); accord Hickey, 178 Ill. 2d at 285. Probable cause
for a search warrant exists where “ ‘given all the circumstances set
forth in the affidavit *** there is a fair probability that contraband or
evidence of a crime will be found in a particular place.’ ” Hickey, 178
Ill. 2d at 285, quoting Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed.
2d 527, 548, 103 S. Ct. 2317, 2332 (1983). With these principles in
mind, we consider defendant’s claim that the trial court erred by
denying him a Franks hearing.
Defendant argues, in line with his first motion for a Franks
hearing, that Officer Anthis made several misrepresentations in the
warrant affidavit. The first alleged misrepresentation involves the tire
print found at the crime scene. Defendant asserts that the police
investigation revealed that the tire print at the scene could have been
made by a Falls Persuader or Dean Polaris tire, and that the affidavit
should have listed both possibilities. Based on our review of the
record, we agree that the warrant affidavit should have referenced
both types of tires. Inclusion of this additional information in the
affidavit would not, however, defeat probable cause. Analysis of the
tire print disclosed two possible tires as the source. The tire on
defendant’s vehicle satisfied one of them.
Defendant next asserts that the location of the tire print was over
100 feet away from where the body was found and thus was not
“near” the body as set forth in the affidavit. According to the crime-
scene technician, automobile tire impressions were found within 17
feet of the body. Those impressions were traced backward–over 100
-23-
feet–toward the entrance to the oil lease road where the body was
found. Although the plaster casts made by the crime-scene technician
may have been made from tire impressions closer to the entrance of
the oil lease road, those impressions were part of the same tracks
found within 17 feet of the body. Accordingly, use of the word “near”
in the affidavit was not false or misleading.
Defendant also asserts that, contrary to the affidavit, the tire print
was never determined to be from the “right side” of the vehicle
suspected of transporting Amy Schulz. According to David
Brundage’s trial testimony, the plaster casts indicated an alignment
problem with the vehicle and, in his opinion, the print was made by a
tire on the front of the car. The affidavit should have so stated.
Nonetheless, this misstatement in the affidavit does not affect the trial
court’s finding of probable cause. Both descriptions were equally
limiting. That is, whether the tire was on the “front” or “right side” of
the vehicle, the location of the tire that left the print at the scene was
limited to two of four possible locations on a vehicle. The subject tire
on defendant’s vehicle, which was on the right front, fit either
description.
The next alleged misrepresentation concerns the boot print found
at the crime scene. The affidavit states that the “print was identified as
coming from a Texas Steer brand boot,” and that “among defendant’s
possessions were *** Texas Steer brand boots.” Defendant states that
the affidavit was misleading because the Texas Steer brand boots he
owned could not have made the print at the scene. Defendant is
correct that the Texas Steer boots found among his possessions in
Montana could not have left the print at the scene. When Anthis
completed the warrant affidavit on October 22, 1987, however, this
fact was not known to him. Only after Anthis went to Montana and
compared defendant’s boots with the boot print from the crime scene
did he learn that defendant’s boots could not have left the print.
Defendant also asserts that Officer Anthis should have faxed a
photocopy of the boot print to authorities in Montana for comparison
prior to seeking a search warrant. Defendant’s assertion as to what he
believes would have been the better police practice or investigative
technique in this case does not provide a basis for a Franks hearing.
A defendant is required to make a “substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless
-24-
disregard for the truth, was included by the affiant in the warrant
affidavit.” Franks, 438 U.S. at 155-56, 57 L. Ed. 2d at 672, 98 S. Ct.
at 2676. Anthis’ statement in the affidavit regarding the boots was not
false or misleading.
Defendant further argues that when Officer Anthis applied for the
second search warrant on October 28, 1987, he should have stricken
the reference to the Texas Steer boots. We agree that once Anthis
inspected defendant’s Texas Steer boots in Montana and determined
that they could not have left the print at the scene, the reference to the
boots should have been stricken from the warrant affidavit.
Nonetheless, we decline to consider what effect this would have had
on the existence of probable cause to issue the October 28 search
warrant. Underlying defendant’s argument is his assumption that he
had a legitimate expectation of privacy in the vehicle at the time of the
October 28, 1987, search. As noted earlier in this opinion, the trial
court, prior to defendant’s first trial, ruled that defendant abandoned
the vehicle and therefore had no legitimate expectation of privacy.
Defendant did not appeal that ruling. Accordingly, defendant’s claim
that the October 28 warrant was not supported by probable cause is
moot.
Defendant also asserts that the October 22, 1987, warrant
affidavit was misleading by improperly implying that a nexus existed
between the tan vehicle seen by witness Cathy Simmons on July 1,
1987, and defendant’s tan vehicle. Defendant notes that the affidavit
omitted Simmons’ description of the taillight configuration of the tan
vehicle she saw on July 1, and that the taillight configuration on
defendant’s vehicle was not a match. According to defendant, police
should have contacted Montana authorities to determine whether the
taillight assembly on defendant’s vehicle matched Simmons’
description. We disagree with defendant that the foregoing assertions
are sufficient to warrant a Franks hearing.
Officer Anthis testified at defendant’s first trial that he did not put
much faith in the description of the taillight configuration provided by
Simmons, who was 16 years old at the time of Amy’s murder. Anthis
explained:
“I had talked to the police artist that had done the diagram
[of the taillight assembly based on Simmons’ description].
He’s done several of these and he is also trained in which to
-25-
observe the person he’s getting the information from to see
if they’re trying to be too helpful and it was his personal
feeling that the person was in such a high pressure situation
they were trying to come up with things. And he even felt
that possibly she was superimposing a tail light assembly from
a Chevrolet Impala that her parents owned in order to help us
because of the type of case it was.”
Officer Anthis also testified at defendant’s second trial that he was not
confident in Simmons’ description of the taillight assembly. Franks
does not impose upon police a duty to include information in a
warrant affidavit they reasonably conclude is unreliable. See Stewart,
105 Ill. 2d at 46-47. The fact that Officer Anthis included Simmons’
description of the color of the vehicle does not make his omission of
the taillight description suspect. According to Anthis, Simmons’
description of the color of the vehicle was supported by other
witnesses who reported seeing a vehicle of varying shades of tan or
brown in the area the night of July 1, 1987.
Defendant also argues that upon their return from Montana,
police intentionally failed to show Simmons photographs of
defendant’s vehicle because they knew Simmons would have told
police that defendant’s car was not the car she saw on July 1, 1987.
Although defendant’s argument is not entirely clear, we assume that
defendant is arguing that police should have disclosed, when applying
for the October 28, 1987, search warrant, that defendant’s vehicle did
not match the description provided by Simmons and that this
disclosure would have defeated probable cause for that warrant. As
we have already concluded, however, any claim that the October 28
warrant was not supported by probable cause is moot, in light of
defendant’s failure to appeal the trial court’s earlier determination that
defendant abandoned the vehicle and thus had no legitimate
expectation of privacy in it.
The next alleged misrepresentation in the warrant affidavit
concerns the following statement: “Hairs were found on the victim’s
body and the laboratory determined them to belong to a white male.”
Defendant contends that, according to the State’s expert witnesses,
sex cannot be determined from a hair, and the hairs found on the
victim could only be classified as Caucasian, not Caucasian male.
Defendant notes that the victim was also Caucasian and argues that
-26-
Officer Anthis deliberately misrepresented the evidence in his affidavit
to exclude the possibility that the hairs could have come from a
female, possibly from the victim herself.
We agree that no evidence was offered by the State that the hairs
found on the victim were determined to have originated from a male
and that Anthis’ statement in the affidavit suggesting otherwise was
incorrect. We disagree, however, with defendant’s assertion that
Anthis “deliberately” misrepresented the evidence. “[A] mere assertion
does not give rise to an inference of improper conduct ***.” Stewart,
105 Ill. 2d at 47. Moreover, the record discloses that, contrary to
defendant’s argument, the two pubic hairs found on the victim’s
buttocks could not have originated from the victim because the victim
was prepubertal. In addition, the autopsy disclosed that the victim had
been anally assaulted. Based on this evidence, coupled with the
laboratory finding that the pubic hair came from a Caucasian
individual, police could have reasonably concluded that the assailant
was a “white male.”
The final misrepresentation claimed by defendant relates to
defendant’s residence. The affidavit states that defendant’s mother
confirmed that defendant was living in Kell, Illinois, at the time of the
murder. Defendant, in fact, lived in Dix, Illinois, in neighboring
Jefferson County. Defendant argues that this fabrication was to
mislead the judge reviewing the warrant affidavit by implying that
Amy might know and accept a ride from defendant since both lived in
the same small village. We agree that defendant’s residence was
misstated in the affidavit. Assuming, arguendo, that this misstatement
was deliberate, the finding of probable cause would not have been
adversely affected had the affidavit correctly reported defendant’s
residence in Dix. The proximity of the two communities would have
placed defendant in the general vicinity of the murder on July 1, 1987.
We conclude, as to defendant’s first Franks motion, that
defendant failed to make the substantial preliminary showing required
for a Franks hearing. That is, had the warrant affidavit correctly
reported that the tire print found at the crime could have come from
a Falls Persuader or Dean Polaris tire; the tire print was made by a tire
on the front of the vehicle; the hairs found on the victim were from a
Caucasian individual; and defendant lived in Dix, Illinois, the trial
court’s finding of probable cause would not be altered. In reaching
-27-
this conclusion we are aware that no single piece of evidence to which
the affidavit referred was conclusive. Nonetheless, the affidavit,
viewed in its entirety, supports the determination of probable cause.
See Stewart, 105 Ill. 2d at 49.
Turning to defendant’s amended motion for a Franks hearing,
defendant asserted two additional grounds: the judge who issued the
warrant was not detached and neutral, and the officers’ reliance on the
validity of the October 22, 1987, search warrant was objectively
unreasonable. We find no error in the trial court’s denial of a hearing
on these matters.
As explained above, a Franks hearing is intended to allow a
defendant a limited opportunity to challenge the truthfulness of the
affidavit used by police to obtain a search warrant. Hickey, 178 Ill. 2d
at 281. The new grounds defendant asserted in support of a Franks
hearing do not challenge the truthfulness of the warrant affidavit. In
addition, although the new grounds defendant asserts are cloaked in
terms of the judge’s neutrality and the officer’s objective good faith,
defendant’s argument, at bottom, is that the October 22, 1987,
warrant was invalid outside of Illinois. This issue, however, was
already litigated at the suppression motion hearing prior to
defendant’s first trial. The trial court ruled that the warrant was valid
in Montana. In addition, the trial court ruled that the police officers
acted in good faith in their application and execution of the warrant.
Defendant did not challenge these rulings in his direct appeal
following his first trial or in his postconviction petition. Accordingly,
the trial court on remand did not err in applying estoppel principles
and declining to relitigate these issues.
III. Inevitable Discovery/Abandonment
Before considering defendant’s next error on appeal, we respond
to certain statements by defense counsel regarding the two search
warrants. Counsel forcefully argues that the Jefferson County judge
had no authority to issue a warrant for a search in Montana and that
he was acting merely as a “rubber stamp” for the Jefferson County
police, or an “adjunct law enforcement officer.” See United States v.
Leon, 468 U.S. 897, 914, 82 L. Ed. 2d 677, 693, 104 S. Ct. 3405,
3416 (1984). Counsel makes an equally forceful argument concerning
-28-
the Illinois warrant, contending that the judge “signed the ‘second’
search warrant for the Sutherland car in an effort to correct or erase
the invalidity of the first search warrant signed by him just six days
earlier. This was a transparent attempt to hide the constitutional
violations in serving an Illinois warrant in Montana.” Counsel asserts
that “[o]ver 200 years of legal jurisprudence will be wiped out with
the stroke of a pen if the [judge’s] two search warrants are deemed to
be valid,” and that defendant will be “denied his most basic of
constitutional and human rights.”
By rejecting defendant’s arguments regarding his suppression
motions and his motions for a Franks hearing, we do not hold that the
two search warrants were “valid.” Rejecting defendant’s arguments
also does not signal a departure from “200 years of legal
jurisprudence.” We acknowledge our concern that a circuit court
judge in this state would issue a warrant purporting to authorize local
police officers to execute a search in Montana. The authority of an
Illinois judge clearly does not extend to Montana. See 48A C.J.S.
Judges §71, at 658 (1981) (“a judge deriving his authority from the
sovereign power of the state has no power to exercise his judicial
functions outside the territorial limits of the state”); see also 68 Am
Jur 2d Searches & Seizures §289, at 842 (2000) (“[o]fficers ordinarily
may not execute a search warrant at a place which lies outside of their
jurisdiction”); People v. Lahr, 147 Ill. 2d 379 (1992) (discussing
territorial limitations of police officers). The question of whether to
exclude evidence, however, is a separate question from whether the
search is legal. People v. Turnage, 162 Ill. 2d 299, 307 (1994), citing
Leon, 468 U.S. at 906, 82 L. Ed. 2d at 687-88, 104 S. Ct. at 3412.
Accordingly, whether the Jefferson County judge and Jefferson
County police exceeded the territorial limits of their offices, or
whether the warrant affidavits were defective, is not dispositive of
whether the evidence should have been excluded.
Under the exclusionary rule, on which defendant relies, “courts
are precluded from admitting evidence that is gathered by government
officers in violation of the fourth amendment.” People v. Lampitok,
207 Ill. 2d 231, 241 (2003), citing Mapp v. Ohio, 367 U.S. 643, 649,
6 L. Ed. 2d 1081, 1086, 81 S. Ct. 1684, 1688 (1961). The
exclusionary rule has no “constitutional footing” (People v. Willis,
215 Ill. 2d 517, 531 (2005)), and is not designed to redress the search
-29-
victim’s invasion of privacy (Lampitok, 207 Ill. 2d at 241). Nor is it
designed “ ‘to punish the errors of judges or magistrates.’ ” Turnage,
162 Ill. 2d at 307, quoting Leon, 468 U.S. at 916, 82 L. Ed. 2d at
694, 104 S. Ct. at 3417. Rather, it is a judicially created remedy that
prospectively protects fourth amendment rights by deterring future
police misconduct. Willis, 215 Ill. 2d at 531, citing United States v.
Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d 561, 571, 94 S. Ct. 613,
620 (1974).
The exclusionary rule is not without its exceptions. Relevant here
is the inevitable-discovery exception. This exception permits evidence,
that would otherwise be inadmissable at trial, to be admitted where the
State can show that such evidence “would inevitably have been
discovered without reference to the police error or misconduct.” Nix
v. Williams, 467 U.S. 431, 448, 81 L. Ed. 2d 377, 390, 104 S. Ct.
2501, 2511 (1984); accord People v. Mitchell, 189 Ill. 2d 312, 342
(2000). As the State notes, in the judge’s oral ruling upholding the
validity of the two search warrants, he alluded to the applicability of
the inevitable-discovery exception. The judge indicated that even if
defendant did not provide the hair samples voluntarily, “it wouldn’t
matter because the State would have gotten the samples later on
anyway” because the search of the vehicle was valid. We understand
the judge’s remarks to mean that even if the seizure of defendant’s
hair was tainted, its lawful seizure was inevitable. We agree with the
judge’s assessment.
The record indicates that the vehicle search yielded hair and fiber
evidence linking defendant to the crime. Specifically, 19 fibers were
recovered from the front passenger seat and carpeting in defendant’s
vehicle which were consistent with the clothing Amy Schulz wore on
July 1, 1987. In addition, numerous animal hairs found in defendant’s
vehicle were consistent with hairs found on Amy’s clothing, all of
which were consistent with hair from defendant’s dog. Further, 28
gold fibers and one gold tuft found on Amy’s clothing were consistent
with the carpeting in defendant’s vehicle, and one gold fiber found on
Amy’s clothing was consistent with the seat fabric in defendant’s
vehicle. Little doubt can exist that such evidence would have provided
the probable cause necessary to support the issuance of a warrant for
-30-
a search of defendant’s person and possessions.3 A search of
defendant’s person, in turn, would have yielded the hair samples from
defendant that were central to the State’s case. If, as the trial court
determined, defendant had no legitimate expectation of privacy in the
vehicle, and thus could claim no fourth amendment protection, the
seizure of defendant’s hair was inevitable. Although defendant
forfeited review of this issue by failing to raise it in his first appeal or
in his postconviction petition, we choose to address the matter now
and lay to rest defense counsel’s claim that defendant was “denied his
most basic of constitutional and human rights.” See People v.
De La Paz, 204 Ill. 2d 426, 432 (2003) (“[t]his court has long
recognized that we may, in appropriate cases, reach issues
notwithstanding their waiver”); Hoskins, 101 Ill. 2d at 219 (“party
who waived the question is bound by his waiver, but the court, which
has the responsibility of reaching a just decision, understandably is
not”).
In defendant’s motions to suppress evidence seized from the
search of his vehicle, defendant invoked the protections of both the
fourth amendment to the United States Constitution (U.S. Const.,
amend. IV), as well as the comparable provision of the Illinois
Constitution (see Ill. Const. 1970, art. I, §6). Defendant does not
argue that our state constitution provides broader protection than the
federal constitution in this situation. We therefore confine our analysis
to fourth amendment jurisprudence. See People v. Caballes, No.
91547 (May 18, 2006); Lampitok, 207 Ill. 2d at 240-41.
Preliminarily, we note that although the State framed the issue as
one of “standing” to challenge the vehicle search, this court, in line
with United States Supreme Court precedent, has dispensed with the
rubric of “standing” when analyzing fourth amendment claims.
3
We need not decide what course of action Jefferson County police should
have taken to effect a proper search in Montana. We need only note that, in
determining whether probable cause for a search warrant exists, Montana
courts, like this court, follow the totality-of-the-circumstances analysis set
forth in Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548, 103 S.
Ct. 2317, 2332 (1983). See State v. Meyer, 323 Mont. 173, 179, 99 P.3d
185, 189 (2004); State v. St. Marks, 312 Mont. 468, 475, 59 P.3d 1113,
1118 (2002); Hickey, 178 Ill. 2d at 285.
-31-
Pitman, 211 Ill. 2d at 521, citing Minnesota v. Carter, 525 U.S. 83,
87-88, 142 L. Ed. 2d 373, 379, 119 S. Ct. 469, 472 (1998); Rakas v.
Illinois, 439 U.S. 128, 138-40, 58 L. Ed. 2d 387, 398-99, 99 S. Ct.
421, 427-29 (1978). Instead, the relevant inquiry is whether the
person claiming the protections of the fourth amendment had a
legitimate expectation of privacy in the place searched. Pitman, 211
Ill. 2d at 514; People v. Kidd, 178 Ill. 2d 92, 135 (1997), citing
Rakas, 439 U.S. at 143, 58 L. Ed. 2d at 401, 99 S. Ct. at 430. Factors
relevant in determining whether a legitimate expectation of privacy
exists include the individual’s ownership or possessory interest in the
property; prior use of the property; ability to control or exclude
others’ use of the property; and subjective expectation of privacy.
People v. Johnson, 114 Ill. 2d 170, 191-92 (1986). When an
individual abandons property, the right of privacy in the property is
terminated. Hoskins, 101 Ill. 2d at 220; accord Pitman, 211 Ill. 2d at
519-20. Abandoned property may be seized and searched without
probable cause. Abel v. United States, 362 U.S. 217, 241, 4 L. Ed. 2d
668, 688, 80 S. Ct. 683, 698 (1960); Hoskins, 101 Ill. 2d at 220;
People v. Jones, 38 Ill. 2d 427, 432 (1967). Whether defendant had
a legitimate expectation of privacy in the vehicle at the time Jefferson
County police seized and searched it, or whether he had already
abandoned the vehicle, as the trial court ruled, is based on the totality
of the circumstances present in this case. See Johnson, 114 Ill. 2d at
192. We will pay particular attention, however, “ ‘to explicit denials
of ownership and to any physical relinquishment of the property.’ ”
Pitman, 211 Ill. 2d at 520, quoting Basinski, 226 F.3d at 837.
Defendant testified at the suppression hearing that he left Illinois
around the first of October 1987 and drove to Montana. On October
10, 1987, after spending one night in Glacier National Park, his car
ran out of gas. Defendant locked the vehicle and left the keys inside
with a note that clearly stated, “Will not be back for car.” Defendant
signed the title over to his parents and left the telephone numbers of
his parents and a brother. The note stated: “let them deside [sic] what
to do with the car and what’s left inside.” Defendant testified that he
had no further use for the vehicle; it belonged to his parents. During
the 12-day period between the date defendant left the vehicle and his
arrest by federal authorities, defendant did not return to the car. Based
on this testimony, we agree with the trial court that defendant
-32-
abandoned his vehicle. See Jones, 38 Ill. 2d at 432 (holding that car
was abandoned where driver jumped from vehicle and ran to avoid
capture by police following store burglary); People v. Arnett, 217 Ill.
App. 3d 626, 632 (1991) (holding that the defendant, “by leaving his
car on a secluded gravel road, unlicensed, unregistered, and along the
railroad tracks, had no expectation of privacy”).
Defendant makes several arguments as to why the car should not
be considered abandoned. Defendant first argues that the
circumstances here do not come within the Illinois statutory definition
of “abandoned vehicle.” The statutory provision on which defendant
relies, however, has been repealed. See Pub. Act 90–89, eff. January
1, 1998 (repealing 625 ILCS 5/4–100 (West 1996)). Defendant next
argues that, pursuant to federal regulations governing the national
park service, the park rangers failed to follow the procedures in place
for the disposition of impounded property. See 36 C.F.R. §2.22
(1987). Whether the park rangers followed the appropriate procedures
is irrelevant to whether defendant had a legitimate expectation of
privacy in the vehicle.
Defendant further argues that he attempted to make a “gift” of
the vehicle to his parents. According to defendant, he had the requisite
donative intent, but the gift was not completed because acceptance
and delivery did not occur. Defendant contends that because the gift
was defeated, the ownership and privacy rights in the vehicle remained
with him. In the alternative, defendant argues that even if the gift was
accepted, “under Montana law the gift could be invalidated if there
was undue influence, such as the circumstances of being broke, out of
gas and unable to move his car.” We assume defendant means to
argue that if the gift was invalidated, the ownership and privacy rights
remained with him.
Whether a legitimate expectation of privacy exists is not
controlled by “arcane distinctions developed in property and tort law
between guests, licensees, invitees, and the like.” Rakas, 439 U.S. at
143, 58 L. Ed. 2d at 400-01, 99 S. Ct. at 430, citing Jones v. United
States, 362 U.S. 257, 266, 4 L. Ed. 2d 697, 705, 80 S. Ct.725, 733-34
(1960). Similarly, whether defendant had a legitimate expectation of
privacy in his vehicle is not controlled by fine distinctions developed
under Montana gift law.
-33-
Finally, defendant argues that “when a person abandons property,
forsaking all reasonable expectations of privacy, he abandons it to the
whole world. He does not ‘abandon’ it to his parents.” This argument
is without merit. Abandonment, for fourth amendment purposes, may
occur where control of a vehicle is transferred permanently to another
person. See 1 W. LaFave, Search & Seizure §2.5(a), at 649-50 (4th
ed. 2004).
We conclude that where, as here, an individual has left his vehicle
unattended in a public place, transferred title to another person,
expressed in writing his intention not to return for the vehicle, and
later confirms that he had no further use for the vehicle, that vehicle
has been abandoned. Fourth amendment protections do not extend to
abandoned property. Abel, 362 U.S. at 241, 4 L. Ed. 2d at 687-88, 80
S. Ct. at 698; accord Pittman, 211 Ill. 2d at 519; Hoskins, 101 Ill. 2d
at 220. Accordingly, an abandoned vehicle “may be seized by the
police without a warrant and examined with no limitations on the
scope, intensity, or objectives of the examination. It and its contents
may be retained for use as evidence otherwise admissible against the
one who abandoned it.” Duncan v. Maryland, 281 Md. 247, 263, 378
A.2d 1108, 1118 (1977). The hair and fiber evidence recovered from
the vehicle were admissible at trial against defendant. Moreover, the
hair and fiber evidence recovered from the vehicle would have
provided the probable cause necessary to secure a warrant authorizing
a search of defendant’s person in Montana, and the hair samples
recovered from defendant would have been discovered inevitably
through lawful means. Therefore, even if we accept defendant’s
argument that the search of his person in Montana ran afoul of his
fourth amendment rights, the evidence seized was admissible at trial
pursuant to the inevitable-discovery exception to the exclusionary
rule.
IV. Missing Vehicle
Defendant next argues that the State violated his due process
rights, as well as this court’s discovery rules, when it failed to produce
the vehicle seized in Montana pursuant to defendant’s discovery
requests.
-34-
On March 14, 2001, prior to defendant’s second trial, defendant
filed a general discovery request seeking, inter alia, any tangible
objects which were obtained from or belonged to defendant.
Defendant followed that discovery request with a motion on May 21,
2001, expressly seeking production of the vehicle. At the hearing on
this motion, the State indicated that although the evidence taken from
the vehicle had been preserved and made available to defendant, the
vehicle itself could not be located. Based on its investigation, the State
surmised that the vehicle was transferred to the Jefferson County
highway department in the early 1990s and that someone later
disposed of the vehicle, probably after defendant’s direct appeal,
which was decided in 1992. The trial court directed the State to make
available to the defense any information that may come to light
concerning the location or disposal of the vehicle. The vehicle was
never produced, and the State never learned the exact date and
method of the car’s disposal.
On May 17, 2002, defendant filed a motion to dismiss the
indictments or, in the alternative, to “bar testimony about items taken
from the car, tests done on those items, any results of tests or
comparisons, along with any testimony about the car itself.”
Defendant argued that the State’s failure to produce the car effected
a violation of his federal due process rights under Brady v. Maryland,
373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), as well as a
violation of Supreme Court Rule 412, governing disclosures to the
accused (188 Ill. 2d R. 412). The State responded, in relevant part,
that suppression of the evidence recovered from the vehicle was not
warranted because what remained of the vehicle after processing by
the State was simply a shell, and that the vehicle was not “outcome
determinative.” See People v. Newberry, 166 Ill. 2d 310 (1995). The
State also responded that the evidentiary value of the remaining
vehicle was merely “potentially useful” and, in the absence of bad
faith, suppression was not warranted. See Arizona v. Youngblood, 488
U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988). The trial court
agreed with the State and denied defendant’s motion.
Defendant argues that the trial court erred in failing to dismiss the
indictments or suppress the evidence seized from the vehicle and
requests this court reverse his convictions outright or, alternatively,
grant him a new trial. We review the trial court’s ruling for an abuse
-35-
of discretion. See People v. Hood, 213 Ill. 2d 244, 256 (2004);
Newberry, 166 Ill. 2d at 318; People v. Walker, 257 Ill. App. 3d 332,
336 (1993); People v. Williams, 137 Ill. App. 3d 736, 740 (1985).
Due Process
Defendant likens the loss or destruction of the vehicle in this case
to the improper suppression of material evidence by the State under
Brady. In Brady, the United States Supreme Court held “that the
suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.” Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218,
83 S. Ct. at 1196-97; see also United States v. Agurs, 427 U.S. 97,
110-11, 49 L. Ed. 2d 342, 353-54, 96 S. Ct. 2392, 2400-01 (1976)
(expanding Brady by recognizing a constitutional duty on the part of
the State to disclose exculpatory evidence to the defendant,
irrespective of whether the defendant makes a specific request).
This court has recognized that the Brady analysis is “ill-suited”
in cases where, as here, the evidence has been lost or destroyed. In re
C.J., 166 Ill. 2d 264, 272 (1995), citing People v. Hobley, 159 Ill. 2d
272, 307 (1994). This court instead has applied the analysis in Arizona
v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333
(1988). See C.J., 166 Ill. 2d at 273; Hobley, 159 Ill. 2d at 307; People
v. Ward, 154 Ill. 2d 272, 298 (1992).
In Youngblood, the defendant was convicted of child molestation,
sexual assault and kidnaping. The Arizona Court of Appeals reversed
his conviction because the State had failed to refrigerate and thus
preserve semen samples from the victim’s body and clothing for later
testing. Youngblood, 488 U.S. at 52, 102 L. Ed. 2d at 285, 109 S. Ct.
at 334, citing State v. Youngblood, 153 Ariz. 50, 734 P.2d 592
(1986). The United States Supreme Court granted the State’s
certiorari petition “to consider the extent to which the Due Process
Clause of the Fourteenth Amendment requires the State to preserve
evidentiary material that might be useful to a criminal defendant.”
Youngblood, 488 U.S. at 52, 102 L. Ed. 2d at 285, 109 S. Ct. at 334.
The Court noted that the due process clause, as interpreted in Brady,
makes the good or bad faith of the State irrelevant where the State
-36-
fails to disclose material exculpatory evidence, but that the due
process clause requires a “different result” where the State fails to
preserve evidence “of which no more can be said than that it could
have been subjected to tests, the results of which might have
exonerated the defendant.” Youngblood, 488 U.S. at 57, 102 L. Ed.
2d at 289, 109 S. Ct. at 337. The reason for the different treatment
rested in part on the Court’s observation that “ ‘[w]henever
potentially exculpatory evidence is permanently lost, courts face the
treacherous task of divining the import of materials whose contents
are unknown and, very often, disputed.’ ” Youngblood, 488 U.S. at
57-58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337, quoting California v.
Trombetta, 467 U.S. 479, 486, 81 L. Ed. 2d 413, 421, 104 S. Ct.
2528, 2533 (1984). The Court also noted its unwillingness to read the
due process clause as imposing on police “an undifferentiated and
absolute duty to retain and to preserve all material that might be of
conceivable evidentiary significance in a particular prosecution.”
Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337.
The Court held “that unless a criminal defendant can show bad faith
on the part of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law.” Youngblood, 488
U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. The presence or
absence of bad faith is dependent on the State’s knowledge of the
exculpatory value of the evidence at the time the evidence is lost or
destroyed. Youngblood, 488 U.S. at 56 n.*, 102 L. Ed. 2d at 288 n.*,
109 S. Ct. at 336 n.*, citing Trombetta, 467 U.S. at 489, 81 L. Ed. 2d
at 422, 104 S. Ct. at 2534. Under the facts of Youngblood, the Court
found no due process violation. The Court characterized the failure of
the police to refrigerate the clothing and to perform tests on the semen
samples as negligent, at worst, and in the absence of bad faith, no
violation of the due process clause occurred. Youngblood, 488 U.S.
at 58, 102 L. Ed. 2d at 289-90, 109 S. Ct. at 337-38.
In Hobley, this court commented on the underlying policy
considerations present in the Youngblood case:
“In order to promote the preservation of exculpatory
evidence, there must be the possibility of a sanction where
evidence is lost or destroyed. On the other hand, a defendant
should not be rewarded for the inadvertent loss of a piece of
evidence where other evidence sufficient to support his
-37-
conviction remains. The proper balance between these
competing interests can be accomplished through careful
consideration of (1) the degree of negligence or bad faith by
the State in losing the evidence, and (2) the importance of the
lost evidence relative to the evidence presented against the
defendant at trial.” Hobley, 159 Ill. 2d at 307.
Applying the principles set forth in Youngblood and Hobley, we
conclude that defendant’s claim is without merit. First, defendant
failed to offer anything, other than mere speculation, demonstrating
bad faith by the State. The record reveals that the vehicle was not
introduced into evidence at the first trial in 1989, and that the State
lost track of the vehicle during the ensuing years. The evidence
recovered from the vehicle, including hair, fibers, carpet standards,
fabric standards, the right front tire and wheel, and the entire front
seat of the vehicle, were preserved. When faced with defendant’s
discovery request in 2001, Jefferson County police conducted a search
for the car. The Jefferson County State’s Attorney also pursued the
matter with the Illinois State Police. Defendant suggests that the State
showed “deliberate indifference” to finding the vehicle by refusing to
report the vehicle as stolen in the National Criminal Information
Center (NCIC) computer. The State explained during the hearing on
defendant’s motion that the NCIC guidelines do not permit a vehicle
to be entered as stolen unless there is probable cause to believe that
it is, in fact, stolen. The State’s investigation suggested not that the
car was stolen, but that sometime in the early 1990s an unidentified
individual in the Jefferson County highway department, where the car
had been transferred, took it upon himself to get rid of the vehicle.
Based on the length of time involved, the State’s preservation of the
evidence recovered from the vehicle, and the State’s efforts to
determine the vehicle’s whereabouts, we agree with the trial court that
the State did not act in bad faith.
Second, we disagree with defendant’s assessment of the
evidentiary value of the vehicle relative to the other evidence
introduced at trial. Defendant argues: “There is no single piece of
evidence that is more pivotal, probative and material than the
Sutherland vehicle. The State presented witness after witness as to the
scrutiny of the car and the tests performed on items allegedly taken
from the vehicle, and the conclusions to be drawn; but the Defense
-38-
was powerless to inspect the same crucial piece of evidence.”
Defendant’s argument raises the same concerns we addressed in
People v. Newberry, 166 Ill. 2d 310 (1995).
At issue in Newberry was whether the defendant, who was
charged with unlawful possession of a controlled substance (cocaine),
was entitled to have the charges dismissed where the State destroyed
the substance in question after a specific discovery request. A field test
of the substance conducted by police was negative for cocaine, but a
laboratory test conducted one month later reached a positive result.
The trial court granted defendant’s motion to dismiss the indictments;
the appellate court affirmed. People v. Newberry, 265 Ill. App. 3d 688
(1994). On appeal to this court, the State argued that under
Youngblood the technician’s destruction of the evidence did not rise
to the level of a due process violation because the technician simply
made a mistake and did not act in bad faith. We found Youngblood
distinguishable on its facts and upheld the dismissal of the indictments:
“In Youngblood, the disputed material was not essential for
establishing the defendant’s guilt or innocence. Its value was
speculative, and it played no role in the prosecution’s case.
*** The situation in this case is markedly different. Here, the
evidence in question is more than just ‘potentially useful.’ It
is essential to and determinative of the outcome of the case.
Newberry cannot be convicted of the drug possession
charges absent proof of the content of the disputed
substance, nor does he have any realistic hope of exonerating
himself absent the opportunity to have it examined by his own
experts.” Newberry, 166 Ill. 2d at 315.
Putting aside, momentarily, whether the outcome-determinative
analysis we adopted in Newberry supports defendant’s position, we
observe that the Newberry opinion has been called into question by the
Supreme Court’s decision in Illinois v. Fisher, 540 U.S. 544, 157 L.
Ed. 2d 1060, 124 S. Ct. 1200 (2004) (per curiam). In Fisher, the
Court reversed a decision of the Illinois Appellate Court which had
applied the Newberry analysis to reverse a drug-possession conviction
where the disputed substance was destroyed by police. The Court
disagreed with the outcome-determinative analysis set forth in
Newberry, indicating that the applicability of the bad-faith requirement
in Youngblood does not depend on “the centrality of the contested
-39-
evidence to the prosecution’s case or the defendant’s defense.”
Fisher, 540 U.S. at 549, 157 L. Ed. 2d at 1067, 124 S. Ct. at 1203.
The Court reiterated its holding in Youngblood that the bad-faith
requirement applies where the evidence destroyed is only “potentially
useful” evidence and not “material exculpatory” evidence. Fisher, 540
U.S. at 549, 157 L. Ed. 2d at 1067, 124 S. Ct. at 1203.
We find it unnecessary to decide whether the outcome-
determinative analysis adopted in Newberry still has vitality in light of
the Fisher opinion because, even if it does, Newberry is inapplicable
under the facts present here.
In Newberry, the evidence destroyed by the State–the suspected
cocaine–formed the very basis of the drug-possession charge against
the defendant. Here, the evidence lost or destroyed by the State–the
vehicle–did not form the basis of the kidnaping, sexual assault and
murder charges against defendant. Nor was the vehicle, itself, central
or critical to the State’s case. The critical evidence was the hair, fibers,
carpet standards, and fabric standards removed from the vehicle. This
evidence, along with the suspect tire, wheel, and front seat of the car,
were available to defendant for examination by his own experts. In
addition, unlike the defendant in Newberry, who was deprived of any
opportunity to examine the destroyed evidence, defendant had access
to the vehicle during his first trial and for a time thereafter. Finally,
unlike the Newberry case, where the disputed substance was destroyed
following a specific discovery request, here the trial court found that
the vehicle was lost or destroyed prior to defendant’s discovery
request. Although we agree with defendant that the State never
determined the exact date and method of the vehicle’s disposal, the
trial court could reasonably conclude, based on the prosecutor’s
representations, that the vehicle was likely disposed of after it was
transferred to the Jefferson County highway department in the early
1990s. Under Newberry or Youngblood, defendant’s due process
claim fails.
Before considering defendant’s alternative argument, we note
that defendant pressed only his federal due process rights in the trial
court in connection with the missing auto, whereas before this court
he asserts a violation of both his federal and state due process rights.
Defendant’s state law claim has been forfeited. See Blair, 215 Ill. 2d
at 443-44. Even if we chose to address it, the analysis and result
-40-
would be no different than that set forth above. See People v.
Pecoraro, 175 Ill. 2d 294, 318 (1997) (where this court, in a failure-
to-preserve-evidence case, adhered to the “well-reasoned principles
set forth in Trombetta and Youngblood for purposes of our state due
process clause”).
Discovery Rules
Alternatively, defendant argues that, irrespective of any due
process violation, dismissal of the indictments or suppression of the
evidence recovered from the vehicle was warranted under this court’s
discovery rules. See 188 Ill. 2d R. 412(a)(v) (governing disclosures to
the accused); 134 Ill. 2d R. 415(g)(i) (governing imposition of
sanctions for discovery violations). Defendant relies on the Newberry
opinion. In Newberry, as discussed above, we affirmed the dismissal
of the defendant’s indictments on due process grounds. We also
noted, however, that dismissal of the indictment was sustainable as a
proper discovery sanction under Rule 415(g)(i):
“Rule 415(g)(i) confers broad power on the trial court to
impose sanctions where, as here, the State fails to comply
with its discovery obligations. Where evidence has been
destroyed following a defense request under Rule 412 (134
Ill. 2d R. 412), no showing of bad faith by the State is
required in order for the trial court to act.” Newberry, 166 Ill.
2d at 317-18.
Based on the “pivotal nature” of the evidence destroyed in Newberry,
we found no abuse of discretion in the trial court’s dismissal of the
indictments. Newberry, 166 Ill. 2d at 318.
Defendant’s reliance on Newberry is misplaced. First, as noted
above, the trial court in the present case found that the vehicle was
lost or destroyed before defendant’s discovery request, not following
its receipt, as was the case in Newberry. Second, unlike the suspected
cocaine which was “pivotal” to the State’s drug-possession charge in
Newberry, the vehicle here was not “pivotal” to the kidnaping, sexual
assault, and murder charges against defendant. Accordingly, the trial
court did not abuse its discretion in denying defendant’s motion to
dismiss the indictments as a sanction under Rule 415(g).
-41-
V. Sufficiency of the Evidence
Defendant next argues that the State failed to prove him guilty of
aggravated kidnaping, aggravated criminal sexual assault, and first
degree murder beyond a reasonable doubt.
When considering a challenge to a criminal conviction based upon
the sufficiency of the evidence, our function is not to retry the
defendant. People v. Milka, 211 Ill. 2d 150, 178 (2004). Rather, we
must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.”
(Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L.
Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); People v. Collins, 106
Ill. 2d 237, 261 (1985). In reviewing the evidence we will not
substitute our judgment for that of the trier of fact. People v. Collins,
214 Ill. 2d 206, 217 (2005). The weight to be given the witnesses’
testimony, the credibility of the witnesses, resolution of
inconsistencies and conflicts in the evidence, and reasonable inferences
to be drawn from the testimony are the responsibility of the trier of
fact. Milka, 211 Ill. 2d at 178; People v. Evans, 209 Ill. 2d 194, 211
(2004). A conviction may be sustained on circumstantial evidence,
provided the elements of the crime have been proven beyond a
reasonable doubt. Milka, 211 Ill. 2d at 178; People v. Buss, 187 Ill. 2d
144, 211 (1999). “The trier of fact need not, however, be satisfied
beyond a reasonable doubt as to each link in the chain of
circumstances. It is sufficient if all of the evidence taken together
satisfies the trier of fact beyond a reasonable doubt of the defendant’s
guilt.” People v. Hall, 194 Ill. 2d 305, 330 (2000). With these
principles in mind, we consider the evidentiary record in detail.
The Victim
In 1987, Amy Schulz, then 10 years old, lived with her father
Dennis, brothers Adam and Ryan (then aged 14 and 12, respectively),
and stepmother, Esther, in a mobile home located a half mile south of
Kell, Illinois. Kell is situated in Marion County just north of County
Line Road, which separates Marion County to the north and Jefferson
County to the south. On July 1, 1987, the date of Amy’s
disappearance and murder, Amy spent the day with her father and
-42-
Ryan at her father’s vacuum cleaner business in Salem. According to
Dennis Schulz, they returned home at 6 p.m. or 6:30 p.m. Amy
changed her clothes, putting on a pair of red, homemade shorts, a red
shirt, white socks, and white tennis shoes. Amy sauteed some
mushrooms for herself and went to visit Gwen and William Willis, her
“step-grandparents.”4 The Willises lived 100 yards north of the
Schulzes across a field. Gwen Willis testified that she and Amy ate
blackberries in the backyard, after which Amy returned home.
Later that evening, Dennis Schulz gave Amy a flashlight and sent
her into town to tell Ryan that Biscuit, one of the family dogs that was
missing earlier, had been found. Because Jefferson Street is the only
road that leads from the Schulz home into Kell, Dennis expected that
Ryan and Amy would meet up at some point. Amy stopped at the
Willis home around 8:30 p.m., stayed a short time, and then left,
walking north on Jefferson Street toward Kell. Ryan never saw Amy,
and Amy never returned home. Amy was last seen by neighbors Cathy
Simmons and Paul Sherwin, who saw Amy walking south on Jefferson
Street at about 9:10 p.m. and 9:15 p.m., respectively. The following
morning an oil-field worker discovered Amy’s body on a dirt oil lease
road in rural Jefferson County.
Vehicle Sightings
Cathy Simmons, who was 16 years old at the time of Amy’s
murder, lived in Kell and knew the Schulz family. She testified that on
the evening of July 1, 1987, she and her sister Cheri took a walk and
saw Amy. Amy asked if they had seen her brother; Simmons told her
no. Simmons and her sister finished their walk, arriving back home at
8:45 p.m. or 8:50 p.m. Simmons stayed on the front porch for a half
hour. At about 9:10 p.m., Simmons again saw Amy, who was headed
south on Jefferson Street. About 5 or 10 minutes later, Simmons saw
a tan, older model vehicle, which she had seen twice earlier that
evening, also headed south on Jefferson Street. Simmons saw the
taillight configuration on the tan-colored car for about 30 seconds,
and worked with a police artist to produce a sketch. The taillights in
4
Gwen Willis was Esther Schulz’s mother; William Willis was Gwen’s
husband.
-43-
the sketch were similar to the taillights on her parents’ vehicle, but
were not a match with the taillights on defendant’s vehicle. Simmons
was not sure whether the drawing accurately reflected what she saw
that night.
Simmons offered conflicting testimony as to whether defendant’s
vehicle was the same color as the vehicle she saw on July 1, 1987. She
also admitted telling the defense investigator in a May 2002 interview,
after being shown photographs of defendant’s vehicle, that
defendant’s car was not the car she saw on July 1, 1987. She noted,
at that time, that the taillights were different and that defendant’s
vehicle had no rust on the right passenger wheel well, unlike the
vehicle she saw in 1987. She also told investigators on July 2, 1987,
that the driver of the vehicle was on the thin side, a description that
would not fit defendant. Defendant’s brother, Kenneth, testified that
in August 1987, defendant, who was 6 feet 3 inches tall, weighed
about 250 or 260 pounds.
Simmons’ sister, Cheri Norton, also testified regarding the walk
they took the night Amy disappeared. Norton recalled that they saw
a vehicle in town that evening that they did not recognize, but she
could not provide a description of the vehicle.
Darlene Prior, a Kell resident, testified that on the night of July
1, 1987, she left her sister’s home, which was located on Jefferson
Street, at about 9 p.m. On her way home, Prior noticed a cream-
colored car which resembled a car she used to own–an older Dodge
Polaris–going faster than she thought it should. The taillights looked
similar to the taillights in the police sketch. Prior did not recall telling
officers on July 10, 1987, that the taillights on the car she saw did not
look like those in the drawing.
The Crime Scene
Richard Caudell, a crime-scene technician with the Illinois State
Police, processed the crime scene. Because Caudell died prior to
defendant’s retrial, Caudell’s testimony from defendant’s first trial was
read to the jury. Caudell testified that the victim was found on a dirt,
oil-lease road in Jefferson County about 108 feet west of where the
lease road meets county road 1975 east (a north-south dirt and oil
road). The victim was lying on her stomach, nude, covered with dust
-44-
and dirt, with a large amount of blood around her head. A large open
wound on the right side of her neck exposed the spinal cord area.
Caudell observed shoe impressions on the victim’s back and hairs
“stuck in the rectum area.”
Caudell also observed a set of tire tracks that began at the
entrance to the oil lease road and ended 17 feet from where the body
lay, as well as a shoe impression in the mud about six feet from where
the tire tracks ended. The shoe impression, which was similar to the
shoe impressions on the victim’s back, was located on what would be
the driver’s side. Although he observed no trail of boot prints leading
to the body, he observed the same tread design on the ground beside
the body. Caudell made plaster casts of the tire tracks and shoe
impression, and bagged the victim’s clothing which was found on road
1975 east. The underpants had been cut or ripped up the sides, and the
red shorts and T-shirt had been turned inside out. The victim’s shoes
and socks were also recovered.
Donald Ostermeyer, a defense expert in crime-scene techniques
and the recovery of evidence, was critical of Caudell. Ostermeyer
testified that Caudell should have removed the hairs from the body
immediately to prevent loss, and that Caudell compromised the crime
scene by placing a sheet over the body. Ostermeyer was also critical
of Officer Anthis, the case agent assigned to investigate the matter,
because he did not view the crime scene until July 3, 1987. He further
testified that police should have talked to oil-field workers about the
tire prints.
The State and defendant offered evidence that the distance from
Kell to the crime scene was approximately 12 miles. Officer John
Kemp testified that the most direct route would take approximately 14
minutes to drive, ending in a desolate area of the county. According
to Kemp, unless the driver knew the area, “you would basically
wander around through there for an extended period of time before
you came back to something you recognized to get you back to a
main road.” The State offered testimony from Officer Kemp and
Russell Hails, a local farmer, which the State argued demonstrated
that defendant was familiar with the area. According to their
testimony, the last family that lived down the road from where the
body was found was the Hufford family. Their home was located
about a half mile from the crime scene. Susan Hufford married
-45-
defendant’s brother Kenneth, and Deborah Hufford married
defendant’s brother Michael.5 The Huffords lived at that location until
the mid-1980s. According to Joan Sutherland, Susan and Kenneth
lived at the Hufford home for a short time. In addition, Officer Kemp
testified that defendant previously lived at County Line Road and
Harmony Road, about 4½ miles from where the body was found.
The Autopsy
Dr. Steven Nuernberger performed an autopsy on July 3, 1987.
The autopsy revealed an incised wound to the victim’s neck, made by
a nonserrated blade, which began left of the midline and had four
separate starting marks. The four marks fused into one deep cut that
ended behind the right ear, severing the jugular vein and the carotid
artery on the right side of the neck and cutting into the cartilage
between the fourth and fifth vertebral body in the spinal cord. In
addition to the incised wound, Dr. Nuernberger observed
hemorrhaging to various neck muscles and the right eye, and that the
larynx had been crushed. He observed no ligature marks. Dr.
Nuernberger testified that these injuries were consistent with
strangulation effected by human hands grasping the victim around the
neck.
Three distinct areas of hemorrhaging beneath the scalp indicated
that the victim had also sustained three blows to the head. In addition,
the inner surface of the upper and lower lips were torn and bruised,
suggesting that “[s]he had been smacked across the mouth.” The
victim’s right ear was torn off at the base, and she had numerous
abrasions and contusions. Dr. Nuernberger observed a discreet heel
print in dirt on the lower back, and a second heel print on the upper
right back that was delivered with “a lot of force,” injuring the skin.
Further examination revealed a subtle abrasion of the labia majus, but
no vaginal penetration. Anal penetration, occurring either shortly
before or after death, was evident, as was a fracture of the right first
rib occurring during the same time frame.
5
At the time of the events at issue here, Michael was married to Tina, who
was also a witness in this case.
-46-
An examination of the internal organs revealed trauma to the
right kidney and that the liver had been torn almost in half, indicating
that “a lot of force” had been applied across the abdomen. Based on
the small amount of internal bleeding that occurred in connection with
the liver injury, Dr. Nuernberger concluded that the injury occurred
postmortem.
Dr. Nuernberger testified that based on his examination, the
victim was strangled first, possibly into unconsciousness, after which
her throat was slit. The pool of blood at the location where the body
was found, and the absence of a trail of blood, indicated that the body
was not moved after her throat was cut. In addition, exsanguination
from the incised wound was more rapid than normal “because
someone stepped on her back and squeezed the blood out of her
body.” Nothing at the crime scene suggested to Dr. Nuernberger that
the confrontation between the victim and her attacker was prolonged;
the confrontation could have occurred in a “frenzied few minutes.”
Dirt on the victim’s feet indicated that the victim may have been
dragged.
Finally, Dr. Nuernberger testified that based on the stomach
contents, if the victim last ate at approximately 6:30 p.m., death
occurred between three to four hours later, i.e., between 9:30 p.m.
and 10:30 p.m.
Boot and Tire Impression Evidence
David Brundage, an expert in footwear and tire track
identification with the Illinois State Police, examined the plaster casts
of the tire and boot impressions from the crime scene. Brundage
determined that the boot print was made by a Texas Steer brand boot
sold only by K mart stores. Brundage acknowledged that the Texas
Steer boots that were among defendant’s possessions in Montana had
a different lug pattern on the sole and could not have left the prints at
the scene. Brundage did not attempt to size the plaster casts of the
boot impressions. Dr. Nuernberger, however, testified that the shoe
impressions on the victim’s back appeared larger than his size 9½
shoe, although the doctor admitted that shoe size was not his area of
expertise. The State also offered testimony from William Bodziak, an
expert in footwear impressions, that the boot which left the print at
-47-
the crime scene was a size 12. Pursuant to directions from Bodziak,
Officer Kemp measured defendant’s feet using three different
methods. Based on Kemp’s measurements, Bodziak concluded that
defendant’s feet are “approximate 12s.” Bodziak could not determine
the size of the shoe that left the print on the victim’s back, but testified
that it was larger than a size 7.
Defendant countered this evidence with testimony from Nicholas
Petraco, an expert in footwear analysis, that the boot that left the
prints at the crime scene was a size 7 or 8. In contrast, defendant’s
Texas Steer boots were size 12 triple E. According to Petraco, the
style of the Texas Steer boot that left the prints at the scene was not
available in a triple E width. Marvin Edelman, a senior buyer at
Meldisco, the company that manufactured Texas Steer boots,
confirmed that the style in question was manufactured in sizes 7
through 13 in medium width only. Edelman noted, however, that if a
customer needed a wider width, he or she could simply go up a half
size.
In addition to Petraco’s testimony, defendant offered the
testimony of his brother, Michael Sutherland, and the testimony of
Charles Parker, formerly a special agent with the Illinois State Police.
Michael recalled that on the night of July 1, 1987, defendant was
wearing his black lace-up boots, and Parker testified that none of the
boots in the Sutherland household matched the prints at the scene.
Tina Sutherland (Michael’s wife) also testified that defendant was
wearing black lace-up boots that evening.
David Brundage also examined the plaster casts of the tire
impressions found at the scene and concluded that the prints were
made by a bias-belted tire, rather than a radial tire. Brundage sent a
black and white photo of the best plaster cast to over 100 tire
manufacturers and distributors for help in identifying the tire that left
that print. Plaiston Tire and Laramie Tire suggested, respectively, that
the print could have been made by a Dean Polaris or Falls Persuader
tire, both manufactured by Cooper Tire. Steve Cramer, the operations
manager for consumer relations at Cooper Tire, also believed the print
could have been made by a Cooper Tire brand tire and suggested that
Brundage obtain a used Falls Persuader tire for comparison. In
September 1987, Brundage obtained a used Falls Persuader tire and
concluded that the plaster casts from the crime scene were consistent
-48-
with the Falls Persuader tire. Brundage also testified that the prints
could have been created by a Dean Polaris tire. He explained that the
minor differences between a Falls Persuader tire and a Dean Polaris
tire that are visible when the tires are new disappear with wear.
Brundage admitted that David Mires, Cooper Tire’s chief
engineer, offered a different opinion. Mires maintained that the print
was not made by a Cooper Tire brand tire but by a Goodyear Custom
Super Cushion, possibly mounted on a trailer. Brundage explained
that he valued Cramer’s opinion over Mires’ opinion because
Cramer’s job at Cooper Tire was to evaluate damaged tires, “so he
was used to looking at tires in a worn condition,” whereas Mires’ job
involved the design of new tires.
Mark Thomas, an engineer in the tire mold design group at
Cooper Tire, was aware that Mires did not believe the print at the
scene was made by a Cooper Tire brand tire, but he did not recall
whether he spoke to Mires about the possibility of the print being
made by a Goodyear tire. Thomas testified that the print from the
scene showed the same number of ribs, grooves, and sipes, and the
same repetitive pitch design, as either the Dean Polaris or Falls
Persuader tire. He further testified that, based on evidence of
“malwear,” the tire would have been mounted on the front of the
vehicle. According to Thomas, 300,000 Falls Persuader and Dean
Polaris tires were produced from 1972 to 1987.
In October 1987, Brundage traveled with investigators to
Montana to examine defendant’s vehicle, which had a Falls Persuader
tire in the right front position. Brundage determined that, with the
exception of additional wear, the tire on defendant’s vehicle exhibited
all the same class characteristics as the plaster cast and that it could
have made the impressions at the crime scene. A positive identification
was not possible because the individual characteristics were either
obliterated or very unclear on the plaster cast.
In November 1987, investigators provided Brundage five
additional tires from other vehicles for examination. In a report dated
December 4, 1987, Brundage concluded that three of the tires, in
addition to the tire from defendant’s vehicle, could not be excluded or
identified as creating the print at the scene. At trial, however, his
conclusion changed. Brundage testified that only one of the tires he
examined could have made the print: defendant’s tire. Brundage
-49-
testified that the day before he took the witness stand, the prosecutor
had asked him to reevaluate the tires, which he did, at the prosecutor’s
office. Brundage explained that the reason for the change in his
opinion was that the investigation of the tires he conducted in the
prosecutor’s office the previous day was “a more thorough
investigation” than the one he had conducted in his laboratory in 1987
and that he had a little more knowledge about tires currently than he
did 17 years earlier.
The defendant offered testimony from a friend and mechanic,
Ronald Lawrence, that sometime after July 24, 1987, but prior to
defendant’s trip to Montana, he changed all four tires on defendant’s
vehicle. Lawrence admitted, however, that in a March 1994 affidavit
he stated that he changed three tires on defendant’s vehicle between
July 28 and August 4, 1987. Lawrence also admitted testifying at a
prior hearing in 1998 that he had changed 10 tires on defendant’s
vehicle between the date of the murder and late August. Vicki
Lawrence, Ronald’s wife, also testified that on July 24, 1987,
defendant was at their home for their son’s tenth birthday party. Vicki
was upset because her husband came home from work and changed
the tires on defendant’s car, rather than coming inside the house for
the party. The first time Vicki went outside they were changing the
right front passenger tire; the second time she went outside they were
changing “the other tire.” Vicki acknowledged that she provided an
affidavit in this case in March 1994 that made no mention of this.
In addition to the Lawrences, defendant’s mother, Joan
Sutherland, testified that she gave a statement to police on October
26, 1987, in which she advised investigators that her son had changed
the front tires on his vehicle after Amy’s murder and prior to his
departure for Montana.
William Anderson, with Gator Tire, testified for the State that he
examined the right front tire from defendant’s vehicle to determine
whether it had been on another vehicle. If the tire had been removed
by hand, he would have expected to see marks on the rim, which he
did not see.
-50-
Human Hairs Recovered From the Body
Richard Caudell, the crime-scene technician, observed hairs
“stuck in the rectum area” of the victim. Dr. Nuernberger, who
performed the autopsy, also observed hairs “adherent to the anal
crease and the buttocks *** by fecal matter.” Kenneth Knight, a
forensic scientist and expert in hair and fiber analysis, examined the
hairs recovered from the victim’s rectum: eight Caucasian head hairs,
which were consistent with Amy’s head hairs; two Caucasian pubic
hairs, which had been forcefully removed from the source; one
Caucasian hair of undetermined body origin; and one animal hair,
whose species could not be identified. The pubic hairs were used to
screen suspects because of their location on the victim and the fact
that the victim was prepubertal and thus had no pubic hair of her own.
In July 1987, Knight conducted microscopic comparisons of the
two pubic hairs found on the victim with pubic hair standards from
Dennis, Esther, Adam and Ryan Schulz, Gwen and William Willis, and
23 other individuals. In making his comparisons, Knight considered 23
characteristics, including the hair’s relative length and color; the hair’s
configuration, i.e., whether the hair was straight, curly, or wavy;
whether the tip of the hair was tapered, broken, rounded, cut or
shaved; whether the root was retched, putrid, or bulbous; the size of
the shaft; whether the base of the hair was pigmented or damaged; the
scale pattern; and the cuticle. Knight explained that to make a
determination that an unknown hair could have originated from the
same source as a known standard, all the characteristics present in the
unknown hair must be present in the standard, with no unexplained
differences. When a difference exists that cannot be explained, the
source of the known standard must be excluded as a source of the
unknown hairs. Based on his microscopic analysis, Knight concluded
that the pubic hairs recovered from the victim were dissimilar to the
pubic hairs standards from the Schulzes, Willises, and the 23 other
individuals and did not originate from them.
Knight also microscopically compared the two pubic hairs with
pubic hair standards from defendant and determined that the hairs
were consistent with each other. Knight noted a difference in
pigmentation in the shaft of defendant’s hair, but considered this
difference insignificant. Knight concluded that the pubic hairs found
on the victim could have originated from defendant. According to
-51-
Knight, five other examiners reviewed his work with regard to
defendant’s hair standards, and all five examiners agreed with his
conclusion.
The pubic hairs recovered from the victim and the standards
obtained from defendant were also subjected to mtDNA analysis.
Harold Deadman, the State’s expert on forensic analysis of hair, fiber,
and DNA, testified that human hair comparisons based on microscopy
are quite difficult because microscopy involves a subjective
examination, and the “ability to get the right answer depends on the
skill of the person doing the comparison.” Deadman further testified
that mtDNA analysis is a more objective technique and, when
performed after microscopy, functions “as kind of a quality control
mechanism,” likely to pick up a mistake by the microscopist. Neither
method, however, provides absolute identification.
The differences between nuclear DNA and mtDNA were
explained by Harold Deadman, as well as John Planz, an expert in the
application of DNA and mtDNA techniques in forensic testing, and
Terry Melton, whose lab, Mitotyping Technologies, performed the
mtDNA analysis in this case. Generally, nuclear DNA is found in the
nucleus of a cell and is transmitted by both parents to their offspring.
In contrast, mtDNA is housed in the mitochondria of a cell, found in
the cytoplasm surrounding the nucleus. No paternal contribution is
made to mtDNA; it is inherited only maternally. Thus, a mother, her
children, the mother’s siblings, and the mother’s maternal ancestors all
have the same mtDNA.
A nuclear DNA molecule has a “double helix” structure and
contains three billion “base pairs” consisting of four chemicals:
adenine, thymine, cytosine and guanine. Although mtDNA also
exhibits a “double helical” form, it is more compact and contains only
about 16,569 base pairs. Scientists conducting DNA analysis of two
samples compare the sequencing of the base pairs in certain control
regions on the DNA strands. A match between two nuclear DNA
profiles is much more discriminating than a match between two
mtDNA profiles.
Terry Melton testified that her laboratory performed an mtDNA
analysis of the two pubic hairs found on the body, and blood samples
obtained from defendant and William Willis, Amy’s step-grandfather.
Melton explained that the mtDNA is first extracted, then copied and
-52-
sequenced, producing a “string of chemical bases 783 long.” The
sequences from the known sample and unknown sample are then
compared. A single difference is inconclusive. Two or more
differences means that the donor of the known sample, along with the
donor’s maternal relatives, are all excluded as the source of the
unknown sample. A complete match between the two sequences
means that the known individual, and his or her maternal relatives,
cannot be excluded as the donor of the unknown sample. If a match
is obtained, a search of the “Scientific Working Group on DNA
Analysis Methods” (SWGDAM) database reveals how rare or
common the sequence may be in the general population, allowing for
further statistical analysis. John Planz explained that the SWGDAM
database, which the Federal Bureau of Investigation (FBI) maintains
and controls, contains over 4,000 mtDNA sequences from primarily
North American populations and is constantly growing.
The mtDNA sequencing performed at Melton’s laboratory
disclosed numerous differences between the mtDNA sequences in the
two pubic hairs found on the victim and in Willis’ blood. Thus, Willis
was excluded as a possible donor of the two pubic hairs. However, a
comparison of the mtDNA sequences from the unknown hairs and
defendant’s blood produced a match.
Melton’s laboratory analyzed a third hair of unknown origin
removed from the sheet used in transporting the body to the morgue.
The mtDNA analysis excluded Willis, the victim, and defendant as the
source of the hair. Melton did not find the absence of a match
significant. She testified that because humans shed between 75 and
100 hairs per day, it is not uncommon to find hairs at a crime scene
that are unrelated to the crime.
Melton’s laboratory analyzed a fourth hair, identified as a human
hair from the victim’s rectal crease. The mtDNA sequence in this hair
was identical to the mtDNA sequences in the two pubic hairs
recovered from the body, as well as the mtDNA sequence obtained
from defendant’s blood.
To determine the significance of the match between the mtDNA
from the three hairs found on the victim and the mtDNA in
defendant’s blood, a search was made of the SWGDAM database.
Melton testified that this type of sequence had never been observed in
the database, indicating a certain rarity in the population. Statistically,
-53-
the sequence observed here would not be expected to occur in more
than six one-hundredths of one percent (.06%) of the North American
population. Stated differently, at least 99.94% of the North American
population would not be expected to have this type of mtDNA
sequence. Melton further explained:
“So the vast majority of people will not have this type, and
we place that with what we call a 95 percent confidence. So
five percent of the time it could be different, but it’s not likely
to be more than that 95 percent of the time.”
Melton also clarified that “we cannot ever eliminate the possibility that
a maternal relative [of defendant] was the donor” of the hairs found
on the victim. Testimony from various family members established
that defendant had numerous maternal relatives, and that defendant,
Michael Sutherland, Kenneth Sutherland, and their uncle Walter
Sinclair, all lived within eight or nine minutes of each other.
Melton further testified that no measurable pooling of genes
exists in any of the regions of the United States that have been
sampled, and she has not seen mtDNA sequences that appear to be
abundant in one region that are not abundant somewhere else. “[W]e
don’t have any indication that we would go out into a particular city
or town and start seeing one type picked at random over and over
again. Not if we have a population to choose from of some size.”
William Shields, a defense expert in population and molecular
genetics, reviewed Melton’s mtDNA reports. Shields testified that
Melton’s reputation in the scientific community was very good and
that the laboratory results Melton obtained were “good clean results.”
Shields disagreed, however, with Melton’s statistical analysis and her
use of the SWGDAM database. In his opinion, Melton underestimated
the frequency of the mtDNA sequence in this case, thus overstating
the significance of the match. Shield’s disagreement stemmed from the
notion of “population substructure, the fact that the frequency of
genetic types will differ among groups of different kinds.” To illustrate
his point, he offered the following example:
“Red heads have a reasonably low frequency. If you look at
the whole world’s population. And, in fact, if I was in ***
what used to be called the Belgium [sic] Congo, and
somebody told me a red head committed a crime, I could
-54-
probably find that there were only three or four red heads in
the population ***, which would give me a pretty good
handle on what was going on. The frequency would be very
low ***. But if I went to an Irish village in a particular place
in Ireland, where 90 percent of the people are red heads, it
would have very little meaning. That’s the difficulty.”
Shields noted that in this case, there are at least three individuals
besides defendant who share the same mtDNA, but that this
information is not reflected in the SWGDAM database used by
Melton. He testified that a way to insure that the worth of the
evidence is not overestimated is to develop an “upper limit,” i.e., a
frequency that the true frequency is not likely to be greater than.
Shields testified that because the population in the geographic area of
the crime is not known, the best estimate of the likelihood that
someone drawn at random from that population would be a match
with the mtDNA from the crime scene is the largest number seen in
any populations that are known. The largest such number seen in any
population reflected in the SWGDAM database is 1 in 12, reflected in
the Thai population. “What it means is we think that if the Thais could
have this level of matching, so could a local population that we’ve not
sampled.”
Robert Makuch, a defense expert in biostatistics, agreed with
Melton’s calculations, but disagreed with her conclusion that “we can
exclude 99.93% of the population as contributors of the questioned
sample.” Melton’s report, which Makuch reviewed, stated that, based
on a database of 4,142 mtDNA sequences, “the 95% confidence limit
is 0.000722, or .07%,” meaning that “there is a 5% chance that the
true frequency in the population exceeds 0.07%.” Makuch explained
that, multiplying 4,142 by .07 yields a value of 3.
“So what it really is saying within 95 percent confidence,
*** it would be reasonable for us to see between zero
matches and up to three matches with a data base of this size.
*** [B]ut then to turn it on its head and then to say that we
can exclude 99.93 percent of the population is in biostatistics,
it’s simply an inappropriate conclusion for those kinds of
data.”
Makuch also testified that from a practical standpoint, we know that
defendant’s siblings have the same mtDNA.
-55-
In rebuttal, the State called Bruce Budowle, a senior scientist
with the FBI who had a primary role in developing the SWGDAM
database. Budowle did not disagree with either Melton’s calculations
or Makuch’s calculations, testifying that the results each obtained are
simply expressed differently. Budowle did, however, disagree with
Shields’ worst case scenario that the mtDNA frequency in this case is
one in 12. Budowle also testified that even in small communities, the
pooling of a particular mtDNA sequence does not occur to the degree
necessary to affect case interpretation.
Additionally, Harold Deadman testified that knowing defendant
has brothers would affect only the associative value of the mtDNA
evidence, but not the value of the microscopic hair comparisons.
Deadman testified that even the hair from identical twins could be
microscopically dissimilar. Thus, although Deadman had not seen any
reports concerning microscopic examinations of the hair of
defendant’s siblings and other maternal relatives, he would not expect
their hair to be microscopically similar to defendant’s hair.
Fibers From Victim’s Clothing and Defendant’s Vehicle
Kenneth Knight, who examined the human hair recovered from
the body, also examined the fiber evidence recovered from the
victim’s clothing and defendant’s vehicle. Knight testified that where
two fibers are consistent with each other, i.e., have no significant or
meaningful differences, the conclusion is that the fibers “could have
originated” from the same source. Harold Deadman testified that a
cross-transference, i.e., a two-way transfer of fibers, adds evidential
value because the odds of finding these fibers by chance is small,
which makes the likelihood that the objects were in contact much
greater. According to Deadman, to find any more than a small number
of matching fibers by pure coincidence is very unlikely.
Knight testified that among the fibers found on the victim’s
clothing were three gold fibers and one gold tuft (comprised of over
30 individual fibers) found on the socks; six gold fibers found on the
shoes; nine gold fibers found on the underpants; eight gold fibers
found on the shorts; and three gold fibers found on the shirt. Knight
compared these fibers with carpet standards from the front and back
of defendant’s vehicle. With the exception of one gold fiber from the
-56-
shirt, all of the individual gold fibers and the gold tuft were consistent
with the carpeting in defendant’s vehicle. Specifically, Knight testified
that the fibers were all large-diameter, trilobal, polyester fibers,
consistent in color, fluorescence, and refraction. The gold fiber on the
victim’s shirt that was inconsistent with the carpeting was a medium-
diameter gold fiber made of nylon. That fiber was consistent with the
fabric in the front and back seats of defendant’s vehicle.
Knight was provided carpet standards from the victim’s
environment, including the Schulz residence, the Willis residence, and
Salem Vacuum Cleaners (Dennis Schulz’s business), for comparison
with the gold fibers found on the victim’s clothing. Knight concluded
that the gold fibers and the gold tuft did not originate from the
victim’s environment, as represented by these standards.
In addition, Knight contacted J.P. Stevens & Co., whose name
was listed on the carpet tag removed from defendant’s vehicle. Robert
Woosley, previously with J.P. Stevens and now a consultant for the
automotive carpet industry, testified that the gold polyester carpet
identified by the carpet tag was manufactured exclusively for Chrysler.
According to Gary Mallett, formerly with the Chrysler corporation,
the type of carpeting installed in defendant’s vehicle was used only in
certain models for model years 1977 and 1978. Erring on the high
side, Mallett estimated that the same type of carpeting was installed
in 80,450 vehicles. Harold Deadman testified that, assuming all the
vehicles in which the same gold carpeting was installed still existed in
1987, the odds were one in 1,400 of picking a car at random with the
same carpeting.
Kenneth Knight further testified regarding the fibers recovered
from defendant’s vehicle, which was transported in a rental truck from
Montana to Mt. Vernon, Illinois, for processing. Knight testified he
did not know how many persons were in the vehicle after July 1,
1987, the date of the murder. Other testimony indicated that a gas
station employee drove the car briefly late in the day on July 1, 1987,
and that during the period from October 10, 1987 (the date the car
was found in Montana), and October 28, 1987 (the date the car was
processed), at least two park rangers had been inside the vehicle. In
addition, testimony from Officer Anthis, who had flown to Montana
and arranged for the transport of the vehicle to Illinois, suggested that
-57-
the car could have been driven a short distance when the Jefferson
County police conducted their initial investigation of the vehicle.
Knight testified that over 6,000 red fibers were recovered from
the vehicle and all but 19 were dissimilar to the victim’s clothing.
Specifically, 12 cotton fibers and 4 polyester fibers from the front
passenger carpeting were consistent with the victim’s shirt, which was
a red polyester and cotton blend. In addition, one red fiber recovered
from the front passenger carpeting, and two red fibers found on the
front passenger seat, were consistent with the victim’s red shorts.
Knight considered this match significant because the victim’s shorts
were homemade out of a fabric not typically used for clothing: a
multilobe, large-diameter polyester fabric. Harold Deadman also
considered the red fibers uncommon. The 19 red fibers were
inconsistent with carpet standards obtained from the victim’s
environment, as well as clothing and a bedspread found in defendant’s
vehicle. Fiber standards from the two park rangers who were inside
the vehicle were not provided to Knight for comparison.
Randall Bresee, a defense expert on fiber analysis, criticized
Knight’s methodology, testifying that Knight’s observations were
largely subjective. According to Bresee, Knight failed to perform a
quantitative analysis of the fibers, such as counting the delusterant
particles, measuring fluorescence, and computing the fiber diameter
values and modification ratios (a quantitative measure of fiber shape).
He also testified that the visual color comparison Knight performed is
error-prone, and that the better method would have been to identify
the dyes used to color the fibers.
Bresee noted that Hoechst Celanese, the company that produced
the polyester used by J.P. Stevens in the manufacture of the carpeting
at issue here, could not specifically confirm that it produced the fibers
found on the victim’s socks. Bresee also opined that any polyester
Hoechst Celanese produced that was “off spec,” or surplus, would
have gone into the marketplace into other goods. Thus, the same
fibers found in the carpeting used in 80,000 Chrysler vehicles would
also be found in other goods such as residential carpeting, floor mats,
and crafts.
-58-
Dog Hair
Kenneth Knight testified that animals generally have three types
of hair: fur, which insulates the animal; guard hairs, which protect the
animal; and tactile hairs, such as whiskers. Guard hairs are used for
comparison because they have the largest number of characteristics to
compare. Knight recovered 32 guard hairs from the victim’s clothing:
14 from the socks, 4 from the shoes, 4 from the underpants, 4 from
the shorts, and 6 from the shirt. In addition, he obtained a single guard
hair from Richard Caudell, which Knight was informed had been
removed from the victim’s underpants. Knight compared these hairs
with hair standards from defendant’s dog, Babe, a black Labrador
retriever, and concluded that the hairs found on the clothing were
consistent with Babe’s hair and could have originated from Babe.
Knight also compared the dog hairs from the victim’s clothing with
hair standards from nine dogs in the victim’s environment, including
five dogs owned by the Schulz family. The hairs found on the victim’s
clothing were dissimilar to these hair standards. In addition, Knight
examined one dog hair recovered from the transport sheet. This hair
was also consistent with Babe’s hair and dissimilar to the hair
standards from the victim’s environment.
Knight testified that during the processing of defendant’s vehicle
he observed animal hair throughout the vehicle and that all of the
tapings from defendant’s vehicle contained dog hair. Knight sampled
90 hairs from the front right passenger carpeting, which he concluded
were consistent with Babe and could have originated from Babe.
Several of the dog hairs found on the victim’s clothing, as well as
standards from defendant’s dog, were provided to Joy Halverson of
QuestGen Forensics for mtDNA testing. Halverson testified that the
same mtDNA process used on human hair is used on animal hair, but
the number of base pairs compared is 655. Like human mtDNA, dog
mtDNA does not distinguish among maternal relatives.
Halverson tested eight animal hairs from the victim’s clothing and
standards from Babe and concluded that the eight hairs were a match
with Babe. In order to determine the significance of the match,
Halverson compared the mtDNA sequence found in this case with the
345 sequences contained in a dog DNA database she developed. The
sequence in this case appeared nine times in her database, indicating
a frequency of 2.6%. She explained that dog mtDNA is less
-59-
discriminating than human mtDNA and that a “match” in this case
means that if the dog population in general were sampled, one out of
38 times the same mtDNA sequence would be seen. Halverson also
testified that evidence suggests no correlation between a dog’s breed
and its mtDNA sequence. Thus, a German Shepherd and a Dachshund
could have the same mtDNA and two German Shepherds could have
different mtDNA.
Christopher Basten, an expert in statistical analysis of DNA
results, reviewed Halverson’s report. He testified that the database
Halverson used was valid and a reasonable approximation of dogs
throughout the United States. According to Basten, an alternative way
of expressing the results Halverson obtained is to say that it is “38
times more likely if Babe or a litter mate is the source than if it’s some
unrelated dog.” Basten applied a confidence interval to Halverson’s
results and obtained a “likelihood ratio of 21, which says that it’s at
least 21 times more likely if Babe or a litter mate is the source than if
it’s some random dog. And you could also say it’s one in 21.”
Robert Makuch, a defense expert on biostatistics, challenged the
validity of Halverson’s database, testifying that 345 sequences is a
small number to be representative of the entire dog population of the
United States. He also testified that the method of obtaining the
sequences must guard against bias and that a random sampling of dogs
from each of the 50 states could produce a database different from the
one Halverson compiled.
Defendant’s Knives
Federal park ranger Robert Burns testified that among the items
he turned over to Jefferson County police were four knives found at
defendant’s campsite, including a hunting knife, a “bayonet-type
knife,” a “survival knife” with a long blade and serrated back edge,
and possibly a pocket knife. Officer Kemp also identified certain
knives in court as belonging to defendant. Investigators found no
blood on these knives or any of the other items from defendant’s
vehicle and campsite. Dr. Nuernberger testified that any sharp,
nonserrated blade or sharp linear object could have been used to cut
the victim’s throat.
-60-
Defendant’s Whereabouts on July 1, 1987
Evidence established that on July 1, 1987, defendant, who lived
in Dix, Illinois, with his parents, went to his regular place of
employment in Mt. Vernon, where he worked from 8 a.m. to 4 p.m.
Joan Sutherland, defendant’s mother, testified that defendant ate
dinner with her that evening, and that they usually ate dinner between
5 p.m. and 6 p.m. After dinner, defendant went to the home of his
brother Michael.
Tina Sutherland, Michael’s wife, testified that on July 1, 1987,
defendant was at their home in Texico, Illinois, which is located about
five miles and five minutes from defendant’s home. Although Tina did
not recall when defendant arrived, she recalled that he and Michael
watched a violent, bloody movie and that defendant left in his vehicle
after the movie ended at 9:30 p.m. Defendant was wearing bib
overalls, a white tank “T-shirt,” and black boots, which he laced up in
her kitchen before he left. Tina admitted that when she spoke to police
in November 1987, she told them that defendant left at 8 p.m. or 8:30
p.m., and that she gave testimony to that effect at a hearing in 1989.
Tina testified that she did not recall the name of the movie defendant
and Michael watched until defendant’s present counsel showed her a
TV guide for that date. The movie they watched was “Red Sonja,”
which ended at 9:30 p.m.–15 minutes after Amy disappeared.
Michael Sutherland testified that defendant arrived at their home
at 5:30 p.m. or 6 p.m. Defendant was wearing black lace-up boots,
which he took off to watch the movie. The movie involved sword
fighting. Michael initially told police defendant left around 9 p.m., and
testified at the prior hearing that defendant left after the movie. When
defense counsel provided Michael a TV guide for July 1, 1987,
Michael was able to identify the movie they watched as “Red Sonja,”
which ended at 9:30 p.m.
In rebuttal, the State called Sherry Witzel, who, in 1989, was an
intern for the Jefferson County public defender, assisting defendant’s
prior counsel. Witzel testified that in May 1989, either Tina
Sutherland or Susan Sutherland gave her a copy of the TV guide for
July 1, 1987. The same woman later told Witzel that defendant was at
her home on the night of July 1, 1987, and that defendant and his
brother watched a movie titled “Big Trouble in Little China.” Witzel
-61-
remembered the name of the movie because she watched the same
movie. “Big Trouble in Little China” ended at 9 p.m.
The State also offered evidence that on the night of July 1, 1987,
at 10:57 p.m., Joan Sutherland, defendant’s mother, received a
telephone call from defendant; a belt had broken in defendant’s car.
Mrs. Sutherland testified that she met defendant at a gas station in Mt.
Vernon, approximately 15 miles from her home. She arrived well after
11 p.m. Mrs. Sutherland and defendant made two trips in her pickup
truck to an Amoco station on the interstate to get the correct size belt.
Defendant installed the belt and Mrs. Sutherland followed him home
in her truck. En route, police stopped their vehicles and spoke with
them briefly. They then drove home. Defendant was at home the next
morning and did not act unusual.
State Trooper Jane Middleton testified that on July 1, 1987, she
was requested to assist in the search for Amy Schulz by setting up a
point on the Marion-Jefferson county line to stop vehicles to see if
anybody had seen Amy. The location was about two-tenths of a mile
west of Jefferson Street. Middleton used her flashlight to flag down
motorists. At about 12:30 a.m. on July 2, 1987, Middleton tried to
flag down defendant’s vehicle, but defendant did not stop until
Middleton “hollered real loud.” He stopped 500 feet east of her.
Middleton identified defendant’s vehicle from photographs and
testified that the driver was heavier set, with brown, unkempt hair, and
facial hair. She made an in-court identification of defendant, testifying
that she recognized him from his eyes and mouth, although she viewed
him primarily from the side. Middleton stated that defendant did not
want to look at her and that he appeared nervous. She made a note of
the stop in her report of July 7, 1987, but did not identify him by name
and could not recall the license plate number. On cross-examination,
Middleton testified that what she wrote in her report was simply, “At
approximately 12:30 AM on the 2nd I checked the vehicle but could
not remember the license plate or the registered owner.”
Larry Martin, formerly a cashier at Harper’s Gas Station in Mt.
Vernon, testified that one evening in early July 1987, prior to July 4,
he noticed a bigger man in bib overalls on the lot working underneath
the hood of his vehicle, which was an older model. After 10 to 15
minutes, the man used the restroom for a minute or two, came inside
and made a telephone call, and then returned to his car. The man
-62-
asked Martin to help him move his vehicle to the south side of the
building. Martin sat in the driver’s seat and steered, while the man
pushed. The man waited inside for his ride, and left with an older
woman in a pickup truck. When Martin left the station at midnight,
the man’s vehicle was still on the lot. About 30 minutes had passed
from the time Martin noticed the man, to the time the man was picked
up. According to Officer Anthis, the most direct route from the crime
scene to Harper’s Gas Station in Mt. Vernon is about 20 miles and
would take about 22 to 24 minutes to drive.
•••
Before considering the sufficiency of the State’s evidence, we
note that we have omitted from the foregoing summary any reference
to the extensive evidence defendant presented at trial which he argued
established that William Willis, the victim’s step-grandfather,
committed the crimes with which defendant was charged. Defendant
has abandoned this argument on appeal, and we therefore find it
unnecessary to recount this evidence, particularly the testimony of the
numerous witnesses whom, as children, were molested by Willis.
Moreover, the jury could have reasonably rejected defendant’s theory
of the case where the mtDNA evidence excluded Willis as a donor of
the two pubic hairs found on the victim’s buttocks. Although
defendant argued that the hairs were unrelated to the crime, the jury
could conclude otherwise based on the sexual assault evidence and Dr.
Nuernberger’s testimony that the hairs were adhered to the anal crease
and buttocks by fecal matter.
As to the sufficiency of the evidence, defendant argues that the
State’s evidence, contrary to the arguments the State made during
closing, failed to connect him to the crime. The State argued in closing
that defendant was familiar with the rural road where the body was
found and that his whereabouts during the critical period from the
time the victim disappeared (approximately 9:15 p.m.) to the time of
death (no later than 10:30 p.m.) were unknown. The State also argued
that the hair and fiber evidence linking defendant to the crimes could
not be simply “coincidence,” particularly where carpeting, animals,
and numerous individuals in the victim’s environment were eliminated
as possible sources of the hair and fiber. Finally, the State argued that
the tire prints, boot prints, defendant’s knives, and the vehicle
-63-
sightings in Kell all had evidentiary value and pointed to defendant.
Defendant contends that even if the jury believed all of the State’s
witnesses and disregarded the evidence defendant presented, the State
failed to meet its burden of proof.
We agree with defendant that some of the evidence introduced by
the State failed to connect defendant to the abduction, sexual assault,
and murder of Amy Schulz. The boot-impression evidence, for
example, established at most that defendant’s shoe size was the same
size as the boot that left the print at the scene and that defendant
owned a pair of Texas Steer brand boots different from the style that
left the print at the scene. In addition, the knives that were among
defendant’s possessions when he was arrested in Montana, which the
State put before the jury, contained no trace evidence linking
defendant to the crimes. Furthermore, evidence suggesting that
defendant’s vehicle was the tan-colored vehicle seen on the night of
July 1, 1987, was marginalized when the State’s witness
acknowledged that she told defense investigators, after seeing
photographs of defendant’s vehicle, that his car was not the car she
saw on July 1.
Of the remaining evidence, no individual item is compelling.
Nonetheless, we cannot say that the remaining evidence, taken
together, and viewed in the light most favorable to the prosecution, “is
so unreasonable, improbable, or unsatisfactory as to justify a
reasonable doubt of defendant’s guilt.” People v. Smith, 185 Ill. 2d
532, 542 (1999).
The State’s tire-impression evidence established that defendant’s
vehicle, which had a Falls Persuader tire in the right front position,
could have left the impressions at the scene. Although the credibility
of the State’s tire expert, David Brundage, was called into question
when he testified inconsistently with his 1987 report, the weight and
credibility of his testimony were for the jury to resolve. See Milka,
211 Ill. 2d at 178. Any conflict in the evidence stemming from the
disagreement between Cooper Tire’s Mark Thomas and Steve Cramer
on the one hand, and David Mires on the other hand, as to the
manufacturer and style of tire that left the print at the scene, and any
conflict as to whether defendant changed the tires before leaving for
Montana, were likewise for the jury to resolve. See Milka, 211 Ill. 2d
at 178.
-64-
The State’s evidence also established that the numerous gold
fibers found on the victim’s clothing were consistent with and could
have come from the gold carpeting and upholstery in defendant’s
vehicle, and that the gold fibers did not come from the victim’s
environment, as represented by certain carpet standards. Evidence also
established that certain red fibers found in defendant’s vehicle, which
experts considered uncommon, were consistent with and could have
come from the victim’s clothing, and that these same red fibers could
not have come from the clothing and bedspread found in defendant’s
vehicle. Although no expert could testify definitively that defendant’s
vehicle was the source of the gold fibers found on the victim’s
clothing or that the victim’s clothing was the source of the red fibers
found in defendant’s vehicle, the State’s expert, Harold Deadman,
considered the association a strong one:
“Each of the fiber associations that *** were reported in
this case have a very small probability of occurring by chance,
some more common than others. But each one has a small
probability of occurring by chance. The combination of all of
them occurring by chance is so small that in my opinion the
probability that Amy Schulz was not in the Sutherland vehicle
shortly before or after she was killed is extremely remote.”
(Emphasis added.)
The State’s microscopic and mtDNA evidence also established
that the dog hairs recovered from the victim’s clothing could have
originated from defendant’s Labrador retriever, Babe, but could not
have originated from the dogs in the victim’s environment.
Additionally, the State established that defendant could have been the
donor of the two pubic hairs found on the victim’s buttocks, as
evinced by the microscopic hair comparisons and mtDNA analysis.
We acknowledge, as every DNA expert in this case has, that mtDNA
evidence cannot exclude defendant’s maternal relatives–including his
brothers and uncle–as donors of the pubic hairs. We also acknowledge
that the State offered no evidence directly excluding defendant’s
brothers and uncle as suspects. Nonetheless, “speculation that another
person might have committed the offense does not necessarily raise a
reasonable doubt of the guilt of the accused.” People v. Manning, 182
Ill. 2d 193, 211 (1998), citing People v. Herrett, 137 Ill. 2d 195, 206
(1990).
-65-
Defendant notes that the State’s own witness Tina Sutherland
provided his alibi when she testified that defendant left her home on
the night of the murder at 9:30 p.m. when the movie “Red Sonja”
ended. The jury learned, however, that Tina Sutherland’s testimony
that defendant left at 9:30 p.m. conflicted with her testimony at an
hearing in 1989 (defendant’s first trial) in which she stated that
defendant left at 8 p.m. or 8:30 p.m. Furthermore, the evidence was
conflicted as to which movie defendant and his brother may have
watched that evening. The jury resolved this conflict against
defendant.
Defendant also directs our attention to the expert testimony he
offered which contradicted the State’s forensics findings, as well as
evidence he argues demonstrates that police mishandled the
investigation. We are cognizant that defendant mounted a vigorous
defense, calling numerous expert and lay witnesses to spotlight what
defendant regarded as weaknesses in the State’s circumstantial case.
Our function, however, as a court of review is not to retry the
defendant or to substitute our judgment for that of the jury. Milka,
211 Ill. 2d at 178; Evans, 209 Ill. 2d at 211. The jury heard the
evidence; it was “not obligated ‘to accept any possible explanation
compatible with the defendant’s innocence and elevate it to the status
of reasonable doubt.’ ” Evans, 209 Ill. 2d at 212, quoting Herrett, 137
Ill. 2d at 206.
We have reviewed the evidence in the light most favorable to the
prosecution, as we must, and hold that the evidence was sufficient, as
a matter of law, to support defendant's convictions.
VI. Caudell Testimony
Richard Caudell, who processed the crime scene and who, with
Kenneth Knight, processed defendant’s vehicle, testified at
defendant’s first trial in 1989. Caudell was deposed by defendant’s
present counsel in October 2001. Caudell died on January 11, 2003,
prior to the instant trial. Shortly after Caudell’s death, defendant filed
a motion to bar Caudell’s testimony at the first trial from being
introduced at defendant’s retrial. The trial court denied the motion,
finding, in relevant part, that “Caudell was subject to unlimited cross
examination” at the prior trial. Defendant argues that the trial court
-66-
erred in denying his motion and requests reversal of his convictions or,
in the alternative, a new trial. We review the trial court’s ruling for an
abuse of discretion. See People v. Harvey, 211 Ill. 2d 368, 392
(2004); People v. Kirchner, 194 Ill. 2d 502, 539 (2000). “An abuse of
discretion will be found only where the trial court’s ruling is arbitrary,
fanciful, unreasonable, or where no reasonable person would take the
view adopted by the trial court.” People v. Hall, 195 Ill. 2d 1, 20
(2000).
“It is well settled that the testimony of a witness at a prior hearing
is admissible in evidence at trial where the witness is unavailable and
when ample opportunity to cross-examine existed at the prior
hearing.” People v. Rice, 166 Ill. 2d 35, 39 (1995). Whether ample
opportunity to cross-examine existed must be decided on a case-by-
case basis. Rice, 166 Ill. 2d at 39. In Rice this court considered
whether a codefendant’s testimony from an earlier suppression hearing
which exculpated the defendant was properly denied admission at
defendant’s trial. We noted that although the State had an opportunity
to cross-examine the codefendant at the suppression hearing, the “key
question” was “whether that opportunity provided a means to
effectively cross-examine codefendant.” Rice, 166 Ill. 2d at 40. We
held that because the focus of the suppression hearing was limited, the
State did not have an opportunity to effectively cross-examine the
codefendant. Without such opportunity, the codefendant’s earlier
testimony was properly denied admission at trial. Rice, 166 Ill. 2d at
41. We explained:
“For an opportunity to cross-examine to be considered
meaningful, and therefore adequate and effective, the motive
and focus of the cross-examination at the time of the initial
proceeding must be the same or similar to that which guides
the cross-examination during the subsequent proceeding.”
Rice, 166 Ill. 2d at 41.
Here, no question exists that defendant had the opportunity at his
first trial to cross-examine Richard Caudell and that the “motive and
focus” of that cross-examination is the same as that which would have
guided cross-examination at defendant’s retrial. Under Rice, the trial
court did not abuse its discretion by denying defendant’s motion to bar
Caudell’s testimony. See also People v. Hawkins, 326 Ill. App. 3d
992, 1003 (2001) (holding that prior testimony of deceased witness
-67-
should have been admitted where the “motive and focus of the cross-
examination at the time of the initial proceeding are exactly the same
as they are today, i.e., the guilt or innocence of [the accused]”);
People v. Taylor, 287 Ill. App. 3d 800, 810 (1997) (holding that
posttrial motion testimony of unavailable witness was properly
admitted at defendant’s retrial where “[t]he testimony was given at a
proceeding that afforded a meaningful opportunity to cross-examine
[the unavailable witness] on the issue of guilt or innocence”).
Defendant argues, nonetheless, that Caudell’s testimony should
not have been admitted because prior defense counsel failed to engage
in any meaningful cross-examination. Defendant, however, cites no
case law holding that prior testimony of a deceased witness will only
be admitted where ample opportunity to cross-examine existed and
such opportunity was fully and effectively utilized. Defendant’s
reliance on People v. Duncan, 173 Ill. App. 3d 554 (1988), for this
proposition is misplaced. At issue in Duncan was whether the
defendant’s testimony at his first trial could be used against him at his
retrial where defense counsel had labored under a conflict of interest
and evidence existed of active collusion between the prosecutor and
the defense attorney. The appellate court concluded that defendant’s
earlier statements “were not made with any degree of particular
advice” and could be used for impeachment purposes only at his
retrial. Duncan, 173 Ill. App. 3d at 558. Duncan does not speak to the
issue present here.
Even if we entertained defendant’s argument that Caudell’s
testimony could only be admitted if prior counsel conducted a
“meaningful” cross-examination of Caudell, we would find no abuse
of discretion by the trial court in admitting Caudell’s testimony. In
support of his argument that prior counsel failed to conduct a
meaningful cross-examination, defendant notes that Caudell’s
testimony on direct examination covered 86 pages of transcript,
whereas Caudell’s testimony on cross-examination covered only 10
pages of transcript. Defendant also cites five instances where prior
counsel failed to make hearsay objections or to lodge an objection to
the prosecutor’s leading questions. “[E]ffective advocacy,” however,
“is not measured by the number of objections raised or the number of
pages of cross-examination.” People v. Williams, 139 Ill. 2d 1, 19
(1990).
-68-
The fact that we reversed defendant’s convictions based on prior
counsel’s ineffectiveness “in failing to investigate and present evidence
concerning the boots and tire” (Sutherland, 194 Ill. 2d at 298) does
not, contrary to defendant’s current argument, provide a basis for
concluding that counsel’s cross-examination of Caudell was
necessarily deficient. Two specific instances of ineffective assistance
do not render prior counsel’s conduct throughout the trial deficient.
We note, too, that defendant never challenged, either on direct appeal
or in his postconviction petition, counsel’s cross-examination of
Caudell.
Defendant also argues that the State never alleged that Caudell’s
testimony was necessary to its case. Defendant claims that the State
could have called other police officers who were present at the crime
scene on July 2, 1987, and that the State used Caudell’s testimony as
a tactic to prevent effective cross-examination. We disagree. The
record indicates that although other officers were present at the crime
scene, Caudell alone processed the scene. No other witness could
provide testimony comparable to Caudell’s testimony concerning his
observations about the body, the measurements he took, the evidence
he bagged, and the plaster casts he created of the tire and boot
impressions. Indeed, defendant criticized the police investigation
because even Officer Anthis, the case agent assigned to investigate the
murder, did not view the crime scene until July 3, 1987. Under these
circumstances, we disagree that the State’s use of Caudell’s testimony
was simply a tactic to prevent cross-examination. The trial court did
not abuse its discretion in admitting the prior testimony of Richard
Caudell.
VII. Witzel Testimony
Defendant next argues that the trial court erred in denying his
motion to bar the testimony of Sherry Witzel. As previously noted,
Witzel, a defense investigator during defendant’s first trial, was called
by the State to rebut the alibi testimony of Tina Sutherland. Defendant
argues that because Witzel was a defense investigator during the first
trial, any information Witzel received in connection with the case
constitutes work product, protected by the attorney-client privilege,
which defendant did not waive. Defendant thus contends that the trial
court erred in denying his motion to bar Witzel’s testimony, and urges
-69-
this court to reverse his convictions or remand for a new trial. We
review the trial court’s ruling denying defendant’s motion for an abuse
of discretion. See Harvey, 211 Ill. 2d at 392; Kirchner, 194 Ill. 2d at
539.
The work-product doctrine on which defendant relies is
embodied in Supreme Court Rule 412(j)(i) and provides that
disclosure “shall not be required of legal research or of records,
correspondence, reports or memoranda to the extent that they contain
the opinions, theories or conclusions of the State or members of its
legal or investigative staffs, or of defense counsel or his staff.” 188 Ill.
2d R. 412(j)(i). The work-product rule “protects from discovery the
mental processes of an attorney in the preparation of his client’s case.”
People v. Lego, 116 Ill. 2d 323, 339 (1987); see also People v.
Knuckles, 165 Ill. 2d 125, 131 (1995) (Rule 412(j)(i) protects “the
attorney’s right to the secrecy of the attorney’s notes and legal
strategies”). This court has held that the verbatim statements of
witnesses obtained by a defense investigator do not fall within the
scope of the protection afforded by the rule. Lego, 116 Ill. 2d at 339.
See also People v. Boclair, 119 Ill. 2d 368, 375 (1987) (holding that
work-product rule was not violated where defendant’s investigator’s
notes were examined in camera by the trial court and only the
portions of the notes that contained factual statements in the
witnesses’ own words were turned over to the State).
Defendant acknowledges that if Witzel had prepared a written,
verbatim report of Tina Sutherland’s statement, such report would not
fall within the scope of the work-product rule. Defendant notes,
however, that here the State “did not seek any written documents but
rather the oral testimony of a defense investigator about her
recollection of a conversation which occurred more than 15 years
earlier.” Defendant urges us to apply the rationale in People v.
Spiezer, 316 Ill. App. 3d 75 (2000), and hold that Witzel’s testimony
should have been barred.
In Spiezer, the appellate court considered whether the trial court
erred in ordering the defendant to disclose to the State a report
prepared by the defendant’s handwriting expert, whom the defense did
not intend to call at trial. The expert analyzed an item that was to be
used by the State as evidence at trial. The appellate court noted that
neither Lego nor Boclair addressed whether the work-product
-70-
doctrine protects material prepared by defense investigators and/or
experts that do not involve the verbatim statements of witnesses.
Spiezer, 316 Ill. App. 3d at 82-83. The appellate court reviewed case
law from other jurisdictions, ultimately following United States v.
Walker, 910 F. Supp. 861 (N.D.N.Y. 1995). According to the
appellate court, Walker concluded that “absent the application of the
work product doctrine to consulting experts, a defendant’s
preparation for trial ‘can only be crippled by the prospect of creating
an unfavorable witness every time he attempts to obtain an unbiased
assessment of the government’s evidence by consulting an expert.’ ”
Spiezer, 316 Ill. App. 3d at 85-86, quoting Walker, 910 F. Supp. at
865.
The specific concerns which drove the Spiezer opinion are not
present here. Witzel’s testimony, which disclosed only factual
information a witness had relayed to her, is not akin to the report in
Spiezer, which contained an expert assessment of an item of evidence
the State planned to use at trial. Allowing Witzel to testify did not
“cripple” defendant’s preparation of his case.
Defendant’s argument overlooks the substance of the information
Witzel’s testimony conveyed and focuses simply on the person who
acquired the information–a defense investigator. Lego and Boclair
establish, however, that witness statements which do not reveal the
impressions or reactions of the investigator to whom they are given
are not protected by the work-product doctrine. We appreciate that,
unlike the Lego case which involved a verbatim witness statement,
Witzel’s testimony did not provide a verbatim account of Tina
Sutherland’s statement. Nonetheless, Witzel was able to testify as to
the substance of the statement without revealing the “opinions,
theories or conclusions” (188 Ill. 2d R. 414(j)(i)) of herself, defense
counsel or his other staff.
The trial court in the present case considered the possibility that
Witzel’s testimony could invade the sphere of protection provided by
the work-product doctrine and inquired about the intended scope of
Witzel’s testimony. The trial court made plain that her testimony
would be limited to the TV guide issue and “nothing else.” We
conclude that the trial court did not abuse its discretion in denying
defendant’s motion to bar Witzel’s testimony.
-71-
Defendant also argues that the prosecutor misstated Witzel’s
testimony in closing argument when he identified Tina Sutherland as
the woman who spoke to Witzel about the TV guide. We disagree
that the prosecutor misstated the evidence. Although Witzel could not
be certain whether it was Tina Sutherland or Susan Sutherland that
gave her the TV guide in 1989, Witzel was certain that the woman
who gave her the TV guide was the same woman who told her that
defendant was at her home on the night of July 1, 1987, watching a
movie with her husband, defendant’s brother. Based on Tina
Sutherland’s own testimony, the prosecutor’s statement in closing
attributing the TV guide conversation to Tina Sutherland was a fair
inference.
VIII. Human mtDNA Evidence
Defendant raises three arguments concerning the human mtDNA
evidence the State introduced at trial. Defendant argues first that the
trial court erred in denying his motion to take the depositions of four
technicians employed by Mitotyping Technologies, the Pennsylvania
laboratory that conducted the human mtDNA sequencing. Defendant,
however, failed to raise this error in his posttrial motion. Under the
forfeiture rules applicable to capital cases, the failure to assert an error
in a posttrial motion will be excused in three limited situations: where
a timely trial objection was made to the error and it is one which could
be raised in a postconviction petition; challenges to the sufficiency of
the evidence; and plain errors. People v. Keene, 169 Ill. 2d 1, 10
(1995). None of these situations are present here and, therefore, the
procedural default applies. Accordingly, we do not reach the merits of
this claim. See Keene, 169 Ill. 2d at 16-19.
Defendant next argues that the trial court erred in denying his
motion to take the deposition of Terry Melton, president of
Mitotyping Technologies, who testified at trial about mtDNA
sequencing in general, and the results of the sequencing her laboratory
did in this case. A claim that the trial court erred in limiting discovery
will be reviewed for an abuse of discretion. People v. Williams, 209
Ill. 2d 227, 234 (2004).
Supreme Court Rule 416(e) governs discovery depositions in
capital cases (188 Ill. 2d R. 416(e)). Pursuant to this rule, discovery
-72-
depositions may be taken “with leave of court upon a showing of
good cause.” 188 Ill. 2d R. 416(e)(i). In deciding whether a deposition
may be taken, the trial court “should consider the consequences to the
party if the deposition is not allowed, the complexities of the issues
involved, the complexity of the testimony of the witness, and the other
opportunities available to the party to discover the information sought
by deposition.” 188 Ill. 2d R. 416(e)(i).
Defendant argued in his motion that because Melton “is going to
testify about conclusions she formulated after reading the test results
of the *** technicians, it is imperative that the Defense be able to
inquire about her rationale and conclusions.” In response, the State
noted that “[v]irtually everything has been *** documented and ***
disclosed about the method of DNA analysis in this case,” and that
defendant had not satisfied the requirements of Rule 416(e).
The record reveals that prior to defendant filing his motion to
take Melton’s deposition, the State had already made extensive
disclosures to defendant regarding the mtDNA evidence pursuant to
Supreme Court Rule 417(b) (188 Ill. 2d R. 417(b)). Rule 417(b)
mandates certain disclosures by the proponent of DNA evidence to
the adverse party including, but not limited to, copies of the case file,
data needed for full evaluation of DNA profiles produced, records
reflecting compliance with quality control guidelines, DNA testing
protocols, proficiency testing results of the examiners, reports
explaining discrepancies in the testing, chain of custody documents,
DNA laboratory audits, and numerous other items. 188 Ill. 2d Rs.
417(b)(i) through (b)(xi). The record also reveals that Melton testified
at length at a Frye hearing related to the mtDNA evidence. See Frye
v. United States, 293 F. 1013 (D.C. Cir. 1923). In denying
defendant’s motion, the trial court considered the requirements of
Rule 416(e) and the “multitude of information” already provided
defendant. Under these circumstances, we cannot say that the trial
court abused its discretion.
Defendant also argues that the trial court erred in denying his
motion to bar certain testimony of Melton. We review the trial court’s
ruling for an abuse of discretion. See Harvey, 211 Ill. 2d at 392;
Kirchner, 194 Ill. 2d at 539.
Defendant’s motion to bar Melton’s testimony, filed shortly after
the trial began, stemmed from the fact that the State had elected not
-73-
to call the laboratory technicians from Mitotyping Technologies to
testify at trial. Defendant argued that without the technicians’
testimony, Melton’s testimony regarding the mtDNA results was
improper since she, herself, had not done the “bench work” at the
laboratory. We disagree. The testimonial evidence of Melton, who
was qualified as an expert in DNA, mtDNA, statistical analysis and
genetics, was admissible pursuant to this court’s opinion in Wilson v.
Clark, 84 Ill. 2d 186 (1981). In Wilson, we held that an expert may
give opinion testimony based on facts not in evidence provided they
are of the type reasonably relied upon by experts in the particular field.
Wilson, 84 Ill. 2d at 193-95 (adopting Federal Rule of Evidence 703).
Defendant makes no argument that the facts relied upon by
Melton–primarily the raw data produced by the laboratory technicians
and the SWGDAM database used to determine the statistical
significance of the laboratory’s findings–are not the type of facts
typically relied upon in the field of mtDNA analysis. We note that the
techniques and methods for mtDNA sequencing currently in use were
subject to scrutiny at a Frye hearing. The trial court ruled that such
techniques or methods “are capable of producing reliable results in
DNA identification, and are generally accepted in the scientific
community.” Moreover, defendant’s own genetics expert, Williams
Shields, testified that the results Melton’s laboratory obtained were
“good clean results.” Based on this record, we cannot say that the trial
court abused its discretion in denying defendant’s motion to bar
Melton’s testimony.
Because we have rejected defendant’s claims of trial error and
because we have held that the evidence is legally sufficient, we affirm
defendant’s convictions for aggravated kidnaping, aggravated criminal
sexual assault, and first degree murder.
IX. Death Penalty
The eligibility phase of defendant’s death penalty hearing
proceeded before the same jury that determined his guilt. Relying
primarily on the evidence adduced at trial, the State argued that
defendant was death eligible under three factors: felony murder
(aggravated kidnaping); felony murder (aggravated criminal sexual
assault); and the victim was under the age of 12 and the death resulted
from exceptionally brutal and heinous conduct. See 720 ILCS
-74-
5/9–1(b)(6), (b)(7) (West 2004). Before the jury could be instructed,
defendant and the State presented to the trial judge an agreed
recommended sentence of death. Defendant acknowledged that his
decision to proceed in this manner was his own idea and that his
counsel advised against it.
The trial judge admonished defendant about the rights he was
waiving, including his right to have a jury determine death eligibility
and the ultimate sentence, and his right to a second-stage sentencing
hearing at which he could offer evidence in mitigation. The trial judge
also advised defendant of the possible sentences for murder. Upon
questioning by the trial judge, defendant indicated he was not taking
any medication and that no one had threatened, forced, or coerced him
into agreeing to a recommended sentence of death.
Defendant’s counsel indicated his disagreement with defendant’s
decision, but could offer no reason why the court should not accept
the recommendation:
“[Defendant] feels that this is a good move on his part
because we will now take his appeal to the Supreme Court.
I indicated to him that if he received a term of years, he could
go to the Appellate Court first in Mount Vernon and then he
still could ask the Supreme Court of Illinois for redress if he
didn’t like the decision. He’s aware of this.
But like I said, he is a master of his own destiny, and he
feels this, for whatever personal and private or public
reasons, he feels this is what he has to–what he wants to do.
So I would indicate to the Court as an officer of the Court
that I see no reason that he should be precluded from
choosing a particular path at this juncture in his life. I do not
feel that he is naive, that he has been coerced. I think he’s
made a rational decision, and I think there is some merit to
his decision from a procedural point of view.”
Before ruling, the trial judge noted that he had presided over the
case continuously since it was remanded for a new trial and had
observed defendant in court communicating with his attorneys,
participating in the proceedings, and assisting his attorneys in the
preparation of his case. The trial judge concluded: “Based upon its
personal observation, the Court believes the defendant is fit and fully
-75-
understands the nature of these proceedings and fully understands the
consequences of his actions.” The trial judge then found defendant
death eligible under the three factors argued by the State.
Although the State earlier indicated its preference for proceeding
with sworn testimony, the trial judge, based on defendant’s decision
to forgo a hearing in aggravation and mitigation, requested only an
offer of proof as to the evidence the State would have presented had
such a hearing been held. Among the evidence the State would have
presented was evidence concerning the details of defendant’s
negotiated plea to one count of the attempted murder of a park
service employee in Montana; a presentence investigation report
disclosing no sexual, physical or emotional abuse of defendant; and
testimony from defendant’s former stepson that defendant anally
sexually assaulted him when he was six years old. The trial judge did
not request an offer of proof as to the evidence defendant’s counsel
would have presented had a hearing in aggravation and mitigation
gone forward.
Thereafter, the trial court accepted the recommended sentence of
death, finding as follows:
“The agreed recommended sentence of death has been
entered into by the defendant freely and voluntarily and of his
own accord. The agreed recommended sentence of death
comes within the statutory sentencing guidelines for the
offense of first degree murder, that the offer of proof that has
been stated herein sets forth factors in aggravation for which
the defendant can be sentenced to death, that no mitigating
factors to preclude a sentence of death have been presented
to the Court. The Court accepts the agreed recommended
sentence and hereby sentences the defendant, Cecil
Sutherland, to death.”
We recognize that the sentencing proceeding in this case was
atypical. This fact, however, would not necessarily render the
proceeding improper. See People v. Silagy, 101 Ill. 2d 147, 178-81
(1984) (rejecting a capital defendant’s argument that his waiver of
counsel at sentencing “frustrated the statutory intention to provide the
sentencing body with all relevant mitigating evidence” or “interfered
with society’s interest in the fair administration of justice”); accord
People v. McLaurin, 184 Ill. 2d 58, 95-96 (1998). Notably, defendant
-76-
has not requested that this court review the procedures utilized by the
trial court at sentencing. In fact, defendant has not raised any
sentencing issue before this court and has not directly challenged the
trial court’s imposition of a sentence of death. Defendant instead
mounted only an indirect challenge to his sentence, arguing that the
State failed to prove his guilt beyond a reasonable doubt and that his
conviction was otherwise flawed. We rejected these arguments and,
under the facts of this case, find no basis to consider the matter
further. We therefore affirm defendant’s death sentence.
As a final matter, we note that the trial judge entered no
sentences on the aggravated kidnaping and aggravated criminal sexual
assault. We thus remand this case to the trial court for imposition of
sentences on these two counts of the indictment.
CONCLUSION
For the reasons discussed above, we (1) affirm defendant’s
convictions for first degree murder, aggravated kidnaping, and
aggravated criminal sexual assault; (2) affirm defendant’s death
sentence for first degree murder; and (3) remand the matter to the trial
court for imposition of sentences for aggravated kidnaping and
aggravated criminal sexual assault.
We also direct the clerk of the court to enter an order setting
Tuesday, March 13, 2007, as the date on which the sentence of death,
entered by the circuit court of St. Clair County, shall be carried out.
Defendant shall be executed in the manner provided by law. 725 ILCS
5/119–5 (West 2004). The clerk of this court shall send a certified
copy of the mandate in this case to the Director of Corrections, the
warden of Tamms Correctional Center, and the warden of the
institution where defendant is confined.
Affirmed;
cause remanded with instructions.
JUSTICES KARMEIER and BURKE took no part in the
consideration or decision of this case.
-77-