727 N.E.2d 302 (Ill. 2000), 84049, People v. Emerson

Docket Nº:84049
Citation:727 N.E.2d 302, 189 Ill.2d 436, 245 Ill.Dec. 49
Party Name:THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DENNIS EMERSON, Appellant.
Case Date:February 17, 2000
Court:Supreme Court of Illinois
 
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727 N.E.2d 302 (Ill. 2000)

189 Ill.2d 436, 245 Ill.Dec. 49

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee,

v.

DENNIS EMERSON, Appellant.

No. 84049

Supreme Court of Illinois.

February 17, 2000.

Modified Upon Denial of Rehearing April 3, 2000.

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Prentice H. Marshall, Jr., Linton J. Childs, Margaret L. Fitzpatrick and Robert C. Varnell, Sidley & Austin, Chicago, for Appellant, and Dennis Emerson, Menard, Appellant pro se.

James E. Ryan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (William L. Browers, Assistant Attorney General, Chicago, Renee Goldfarb and James E. Fitzgerald, Assistant State's Attorneys, of counsel), for the People.

[189 Ill.2d 449] JUSTICE McMORROW delivered the opinion of the court:

In 1985, defendant was convicted of the murder and armed robbery of Delinda Byrd, as well as the attempted murder and armed robbery of Robert Ray. A jury found defendant eligible for the death penalty based on Byrd's murder and found no mitigating factors sufficient to preclude the imposition of the death penalty. Pursuant to defendant's petition for a writ of habeas corpus, the United States District Court for the Northern District of Illinois ordered that defendant receive a new sentencing hearing. United States ex rel. Emerson v. Gramley, 883 F.Supp. 225 (N.D. Ill. 1995). The federal appellate court affirmed the district court. Emerson v. Gramley, 91 F.3d 898 (7th Cir. 1996).

The circuit court of Cook County held a new sentencing hearing, at which a jury again found defendant eligible for the death penalty and found no mitigating factors sufficient to preclude the imposition of the death penalty. The propriety of that sentence is now before this court pursuant to defendant's direct appeal. Ill. Const. 1970, art. VI, §4(b); 134 Ill.2d R. 603. Defendant's death sentence has been stayed pending our review. 134 Ill.2d R. 609(a).

BACKGROUND

This case is before this court for the fourth time. The procedural history of the case begins in the early 1980s, when defendant was tried for the 1979 murder and armed robbery of Byrd, the attempted murder and armed robbery of Ray, and aggravated arson. A jury convicted defendant of these offenses and imposed the death penalty for Byrd's murder. On direct review, however, this court found that defendant was denied a fair trial based on (1) the admission at trial of a prior consistent

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statement by Ray and (2) improper comments by the prosecution during closing argument. This court reversed [189 Ill.2d 450] defendant's convictions and sentence and remanded the cause for a new trial. People v. Emerson, 97 Ill.2d 487 (1983) (Emerson I). On remand, a jury again convicted defendant of murder, attempted murder, armed robbery and aggravated arson and imposed the death penalty. Pursuant to defendant's direct appeal, this court reversed his conviction for aggravated arson but affirmed his other convictions and death sentence. People v. Emerson, 122 Ill.2d 411 (1987), cert. denied, 488 U.S. 900, 102 L.Ed. 2d 235, 109 S.Ct. 246 (1988) (Emerson II). The circuit court dismissed defendant's subsequent petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq. (now 725 ILCS 5/122-1 (West 1996))) without an evidentiary hearing, and this court affirmed that dismissal. People v. Emerson, 153 Ill.2d 100 (1992), cert. denied, 507 U.S. 1037, 123 L.Ed. 2d 485, 113 S.Ct. 1865 (1993) (Emerson III).

The federal district court granted in part defendant's petition for a writ of habeas corpus. The court rejected defendant's claim that he received ineffective assistance of counsel at trial but remanded the cause for a new sentencing hearing after finding that defendant failed to receive the effective assistance of counsel at sentencing. United States ex rel. Emerson v. Gramley, 883 F.Supp. 225 (N.D. Ill. 1995) (Emerson IV). The United States Court of Appeals for the Seventh Circuit affirmed the district court. Emerson v. Gramley, 91 F.3d 898 (7th Cir. 1996) (Emerson V), cert. denied, 520 U.S. 1122, 137 L.Ed. 2d 339, 117 S.Ct. 1260 (1997).

On remand, at the eligibility phase of defendant's sentencing hearing, Robert Ray testified that, in 1979, he and his cousin owned the Centaur Lounge at 1154 West 69th Street in Chicago. On Sunday, August 12, 1979, Ray opened the lounge at noon. During the day, he received three or four telephone calls from defendant. Defendant's brother Ricky Jackson had introduced Ray to defendant, [189 Ill.2d 451] and Ray had known defendant for about a year. When he called, defendant indicated that he planned to visit Ray at the lounge that day. Because business was slow, Ray closed the lounge early, at around midnight or 1 a.m.

Before Ray closed the lounge, he received another telephone call from defendant, during which defendant told him that he still planned to visit. After the lounge was closed, defendant arrived with his brother Richard Jackson (Jackson). Although Ray knew defendant's brother Ricky, he had never met defendant's other brother, Richard. Ray opened the door and security gate for defendant and Jackson, and the three men walked to the apartment in the rear of the lounge.

Ray explained that he rented this apartment, which was accessed by a door behind the bar in the lounge. Inside the apartment were two bedrooms, a bathroom, and a kitchen. In the bedroom where Ray slept, there was a window that opened onto an air shaft between the apartment and the neighboring building. The window in the other bedroom was covered with boards.

Soon after the three men sat down in the kitchen area of the apartment, Ray's girlfriend, Delinda Byrd, arrived. After Byrd's arrival, Ray left the apartment to go across the street to buy a package of cigarettes. When he returned, the group continued to talk in the kitchen area. Ray could not remember if they had anything to drink and could not remember much about their conversation, except that he told defendant and Jackson that the lounge had not yet started to "pay off."

During their conversation, Ray turned to look at defendant and saw that defendant had a gun pointed at him. Defendant told Ray that it was a robbery or a stick

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up. Defendant then made Ray and Byrd lie face down on the floor and tied their hands and feet with electrical cord he took from a lamp.

Defendant then searched Ray and Byrd and took the [189 Ill.2d 452] money they were carrying. Afterward, he emptied the cash register in the lounge. When he returned to the apartment, defendant asked Ray if he had any guns. Ray told him that there were two guns in the closet of his bedroom, and defendant went into the bedroom to retrieve the guns. Defendant then walked back and forth transporting other items from the apartment into the lounge. While defendant tied Ray and Byrd, emptied the cash register, and removed items from the apartment, Jackson sat on a desk in the apartment and pointed a gun at Ray and Byrd.

After defendant stopped moving items from the apartment to the lounge, Ray heard Jackson say "use this" to defendant. Ray could not see what Jackson was referring to at the time because he was lying on his stomach, but then defendant stood over him with the half pair of scissors that Ray used to operate a broken doorknob in the apartment. Defendant lifted Ray's shoulder from the ground and stabbed him twice in the chest with the scissors. Jackson was still sitting at the desk holding the gun during Ray's stabbing.

Ray lay very still after defendant stabbed him until he saw defendant stand over Byrd. When he realized that defendant "was about to do the same thing to her," Ray begged him not to do it. Defendant turned and gave Ray a "real evil" look. Ray did not actually see defendant stab Byrd because he looked away as he saw defendant swing his hand holding the scissors in a downward motion toward Byrd.

Next, Ray heard defendant walk past him into Ray's bedroom. Ray did not recall whether Jackson accompanied defendant into the bedroom. Defendant stayed in the bedroom for a minute or two. When he exited the room, defendant and Jackson lifted Ray and threw him into the bedroom, which was now on fire. Defendant and Jackson then threw Byrd on top of Ray. They closed the [189 Ill.2d 453] door, and Ray heard a noise as if they were fastening the doorknob. After the noise stopped, Ray untied his hands and tried to open the door but could not. Ray then opened the window in the bedroom and fell into the air shaft. Byrd, who was able to follow him, fell on top of him. Ray then untied his feet and untied Byrd's hands and feet.

After freeing himself and Byrd, Ray reentered the bedroom and again tried unsuccessfully to open the bedroom door. He then climbed back into the air shaft, where he opened the kitchen window. The smoke and heat coming from the kitchen, however, made him immediately close that window. He and Byrd screamed for help, after which Ray stood on the kitchen window sill and "kicked in" an air conditioner and some plasterboard from a window leading from the air shaft to the lounge. He and the air conditioner fell into the lounge. Ray exited the lounge through the front door. After learning that neighbors had called the fire department, he attempted to reenter the lounge, but the smoke prevented him from doing so. He then ran to the back of the building, where he could see into the air shaft through a two- or three-inch opening between...

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