People v. Carlson, 50890

CourtSupreme Court of Illinois
Citation404 N.E.2d 233,38 Ill.Dec. 809,79 Ill.2d 564
Docket NumberNo. 50890,50890
Parties, 38 Ill.Dec. 809 The PEOPLE of the State of Illinois, Appellee, v. Robert K. CARLSON, Sr., Appellant.
Decision Date18 April 1980

Page 233

404 N.E.2d 233
79 Ill.2d 564, 38 Ill.Dec. 809
The PEOPLE of the State of Illinois, Appellee,
v.
Robert K. CARLSON, Sr., Appellant.
No. 50890.
Supreme Court of Illinois.
April 18, 1980.
Rehearing Denied May 29, 1980.

[79 Ill.2d 569]

Page 235

[38 Ill.Dec. 811] Mary Robinson, Deputy State Appellate Defender, and Mark Schuster, Richard E. Cunningham and Martin Carlson, Asst. State Appellate Defenders, Elgin, for appellant.

William J. Scott, Atty. Gen., Chicago, and Dennis P. Ryan, State's Atty., Waukegan (Donald B. Mackay, Melbourne A. Noel, Jr., Thomas E. Holum, Carolyn B. Notkoff and Mark L. Rotert, Asst. Attys. Gen., Chicago, and Ann W. Regan, Asst. State's Atty., Waukegan, of counsel), for the People.

James J. Doherty, Public Defender of Cook County, Chicago (Robert P. Isaacson, Aaron L. Meyers and John Thomas Moran, Asst. Public Defenders, Chicago, of counsel), for amicus curiae Office of the Public Defender of Cook County.

RYAN, Justice:

The defendant, Robert K. Carlson, Sr., was sentenced to death in the circuit court of Lake County. The appeal has come directly to this court. (Ill.Const.1970, art. VI, sec. 4(b); 73 Ill.2d R. 603.) The defendant argues that numerous errors were committed in his convictions on two murder charges and an arson charge. He also challenges [79 Ill.2d 570] the validity of the imposition of the death penalty.

The defendant was charged by an indictment in Lake County with the murder of his former wife, Rosemary Carlson, and the arson of her residence. He was also indicted for the murder of Waukegan police officer Harry White and for the attempted murder of Waukegan police officer Charles Mason. The attempted murder charge was later dropped. On defendant's motion, the two cases were consolidated for trial. The defendant pleaded not guilty to the charges. The jury found the defendant guilty of one count of arson and two counts of murder. The State requested that a hearing be conducted in order to determine the appropriateness of the imposition of the death penalty in the case involving the murder of Officer White. (See Ill.Rev.Stat.1977, ch. 38, par. 9-1(d).) The defendant requested that there be only one sentencing hearing for all convictions. He also waived the right to have a jury determination of whether the death penalty should be imposed. (See Ill.Rev.Stat.1977, ch. 38, par. 9-1(d).) Following the penalty hearing the court sentenced the defendant to 6 1/3 to 20 years for arson and 50 to 100 years for the murder of his former wife. The court sentenced the defendant to death for the murder of the Waukegan policeman, White. The trial court entered an order staying the execution of the death sentence, pending direct appeal to this court.

On August 12, 1977, after 19 years of marriage, Rosemary Carlson was granted a divorce from the defendant. In this case the defendant testified that he had agreed not to contest the divorce on the condition that Rosemary would not entertain men at the house. Carlson quitclaimed his interest

Page 236

[38 Ill.Dec. 812] in the marital residence to Rosemary. Although he moved out of the house, the defendant and Rosemary continued to see one another. Carlson testified that remarriage was planned for October 18, 1977; Rosemary, however, postponed the wedding date. On Wednesday, [79 Ill.2d 571] November 9, 1977, Rosemary called the defendant and told him that because she had a "boyfriend," she would not be seeing the defendant as frequently as before. Before the defendant went to work the following day, Rosemary came to his apartment for money. During this visit, she again discussed her boyfriend. The defendant testified that he was "stunned" by the news of her boyfriend. He stated that he decided to go to Las Vegas and he arranged to buy a gun at work purportedly for protection on his trip. On Friday, November 11, 1977, the defendant purchased a gun and ammunition from a coworker. He testified that after work he wrapped the loaded gun in a towel and placed it on his car's front seat. The next day, Saturday, November 12, 1977, the defendant went to the bank, withdrew the money in his account and cashed some traveler's checks. In the evening the defendant drove past Rosemary's house twice with the purported intent to give Rosemary money. Each time he saw a strange car in the driveway, so he did not stop. The defendant "got mad," assuming that Rosemary was entertaining a man at the house, contrary to the oral agreement they had made. He purchased two gasoline cans and filled them with gasoline. He placed the filled gasoline cans in the trunk of his car. He testified that he planned to burn the house down the next day when Rosemary drove their son Eric to school. He stated, however, that late that night, while lying in bed, he realized that he could not burn down the house because it would cause Rosemary to go to her boyfriend.

The following day, Sunday, November 13, 1977, Rosemary called the defendant to ask him to accompany her and Eric to Lake Geneva, Wisconsin, where Eric attended school. Before going, he picked up some medication for Rosemary. At the school, the defendant put money in both Eric's personal account and in his quartermaster account. After leaving Eric at the school, the defendant and Rosemary shopped and he bought her a [79 Ill.2d 572] sweater. They had dinner in Lake Geneva and returned to Rosemary's house. On the way home, Rosemary again talked about her boyfriend and showed the defendant a diamond engagement ring which had been given to her by her male friend. She told the defendant that her boyfriend wanted to build her a house and buy her a business. She informed Carlson that her boyfriend put $3,000 in a savings account for her and bought her a vacuum cleaner. Upon arriving at the house the defendant noticed a new typewriter, television and coin bank. Rosemary told him that these were gifts from her boyfriend and that the coin bank was given to her when her friend opened the savings account. The defendant testified that seeing these items made him realize that everything his wife had said was true.

Carlson stated that the next thing he could remember was lifting his former wife from the floor. Expert testimony at trial revealed that Rosemary had been shot 10 times. It is not clear from the evidence, but at some time on the same day, Sunday, the defendant had brought the gasoline cans into the house. On his way in, some children playing near the house saw the defendant, but they testified he was not carrying anything resembling gasoline cans. However, it is uncontroverted that the defendant poured gasoline throughout three rooms and set fire to the house. Upon leaving the house, the defendant greeted some of the boys playing in front of the house. Within minutes, the boys noticed flames in the house and called the fire department. The fire was reported at approximately 6:20 p. m. Firemen found Rosemary's body in the debris. An autopsy showed death to be a result of multiple gunshot wounds. Testimony was admitted which indicated that, since there was little soot or smoke in her lungs, Rosemary was dead before the fire began.

After leaving the house, the defendant proceeded to a bar. There he encountered a

Page 237

[38 Ill.Dec. 813] coworker, Stanley Wilson. [79 Ill.2d 573] After an unsuccessful attempt to telephone his daughter, the defendant told Wilson of his plans to leave for California that night. He gave Wilson $3,200 in cash in an envelope to pay for Eric's education. He asked that the money be forwarded to his daughter who resided in Wisconsin. The defendant also sold Wilson his tools and television set for $200. After these transactions, the defendant and Wilson continued to sit and drink in the bar for some time. At approximately 9:40 p. m., three police officers and an assistant State's Attorney came to the bar to arrest the defendant. Another police officer, Sergeant Hauri, the only one in uniform, entered minutes later. The defendant testified that he was aware that the persons were police officers. Captain Mason, Sergeant Joiner and the deceased, Sergeant White, approached the area where the defendant and Wilson were seated on bar stools. Captain Mason stood behind Wilson, and believing Wilson to be the defendant, mistakenly grabbed Wilson and said, "Bob, you're under arrest." Sergeant White stood behind the defendant and said, "Mr. Carlson, you have to come with us." It is uncontroverted that as the officers approached, the defendant had taken a gun out of his waistband. According to the testimony of Sergeant Hauri, the defendant faced Sergeant White, and two muzzle flashes reflected off of Sergeant White's shirt. White fell toward the defendant, pulling the defendant to the floor. They struggled for several seconds on the floor, during which time three or four more shots were fired by the defendant. Another bullet hit White and a bullet went through the defendant's upper left arm. Captain Mason was shot though his left ankle and sustained an injury to his left buttocks due to a ricocheted shot. Sergeant Joiner finally managed to wrest the gun from the defendant's right hand. White was taken to a hospital where he died that evening. The autopsy revealed that White died of bullet wounds to the chest.

[79 Ill.2d 574] At the trial the defendant raised the defense of insanity as to the charge of murder of his ex-wife, Rosemary, and as to the arson charge. Concerning the charge of murder of Sergeant White, it was the defendant's contention that when the police officer approached him in the tavern, he was going to commit suicide and as he was attempting to do so, the officer was shot during the struggle that ensued. It is the defendant's position that he is therefore guilty of no more than involuntary manslaughter as to Sergeant White's death.

Before trial the public defender filed a motion requesting that the prospective jurors not be questioned about their views on the imposition of the...

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