People v. Cumbee, 2-03-1177.

• Citation: 851 N.E.2d 934
• Decision Date: 30 June 2006
• Docket Number: No. 2-03-1177.,2-03-1177.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John A. CUMBEE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 934

851 N.E.2d 934

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John A. CUMBEE, Defendant-Appellant.

No. 2-03-1177.

Appellate Court of Illinois, Second District.

June 30, 2006.

Jed H. Stone, John Curnyn, Stone & Associates, Waukegan, for John A. Cumbee.

Louis A. Bianchi, McHenry County State's Attorney, Woodstock, Martin P. Moltz, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Mary Ellen Dienes, Des Plaines, for the People.

Justice BOWMAN delivered the opinion of the court:

Following a jury trial in 1993, defendant, John A. Cumbee, was found guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 1992)) and sentenced to life imprisonment. On appeal, we reversed defendant's conviction and remanded the case for a new trial, based on the trial court's failure to instruct the jury on venue. People v. Cumbee, No. 2-93-0923, 275 Ill. App.3d 1140, 229 Ill.Dec. 889, 692 N.E.2d 878 (1995) (unpublished order under Supreme Court Rule 23). Defendant was retried in 2003 and again convicted of first degree murder and sentenced to life imprisonment. Defendant raises several arguments on appeal, including that: (1) the trial court violated this court's mandate by providing the jury with a modified venue instruction; (2) the trial court erred by denying him a Frye hearing (see Frye v. United States, 293 F. 1013 (D.C.Cir.1923)) to determine the admissibility of luminol testing; and (3) the trial court erred by admitting evidence of other crimes. We affirm defendant's conviction and sentence.

I. BACKGROUND

Defendant's second trial commenced on July 23, 2003, and the following evidence was adduced. On May 6, 1992, around 6:45 a.m., the body of Kathy Twarowski was discovered in a Geo Tracker 35 to 40 feet from Rabine Drive, a private driveway in a secluded area. Defendant, a firefighter and former police officer, had worked part-time for Rabine Construction, which was located in the same area. Twarowski was covered in blood, her pants were unzipped and open, and she was in a reclined position in the driver's seat. There was a "pooling of blood" and a large blood spattering in the rear seat on the driver's side, but there were no blood spatters on the ceiling of the car. The distance between the place where Twarowski's body was discovered and defendant's home was less than one mile.

Twarowski's mother, Elizabeth (Betty), testified as follows. Twarowski began dating defendant in September 1989. At that time, she was living with her parents. In August 1990, Twarowski moved in with defendant. In May 1991, Twarowski and defendant bought a house together. Then, in June 1991, Twarowski moved back in with her parents for about three weeks. After that, she moved back in with defendant. Later, in November 1991, she moved back in with her parents, where she lived until May 5, 1992. Without going into details, Betty testified that something happened that changed the relationship between defendant and her daughter. Over objection, Betty testified that sometime in January 1992, she observed bite marks on Twarowski's face, nose, and tongue. As a result, Bob, Twarowski's father, took her to a medical center to treat the injuries. Pictures of the bite wounds were entered into evidence.

On May 5, 1992, around 6:30 p.m., defendant called and Betty answered the phone. Defendant asked to speak to Twarowski, and Betty did not hear their conversation. Twarowski then sat down to dinner with Betty, Bob, and her brother Brad. After dinner, Twarowski went up to her room and then left the house around 8:30 p.m. She was wearing her DePaul jacket, a gray sweatshirt, and gray socks pulled over her jeans.

Over defendant's objection, the State called several of Twarowski's friends to testify regarding defendant's prior acts. Michelle Gast, a close friend of Twarowski's since high school, testified that on December 31, 1991, Twarowski, Gast, and a group of friends went to Chicago to celebrate New Year's Eve. They first went to a hotel room, but had no definite plans for the evening. As a last-minute decision, the group decided to take a cab to the Hard Rock Café around 10 p.m. When they arrived, defendant was waiting outside the building by the entrance. This was unusual because they were not aware that he would be there and he had not been invited. After one drink at the Hard Rock Café, the group left, and Gast did not recall seeing defendant again that night.

Laura Hill, another close friend of Twarowski's since high school, testified regarding an event at Bogey's Nightclub on January 11, 1992. Around 10 p.m., Twarowski, Hill, and a group of friends arrived at the club. They saw defendant at the club about 30 minutes after they arrived. Defendant pulled Twarowski onto the dance floor and Hill grabbed another friend and danced "right beside them." While dancing, Hill saw defendant bite Twarowski on the cheek. At the time, the trial court gave a limiting instruction to the jury, explaining that the evidence was being received on the issues of defendant's identity, intent, and motive. Hill grabbed Twarowski, who was bleeding, and took her to the bathroom. Some "bouncers" at the club then escorted defendant out. In the bathroom, Hill saw that Twarowski had been bitten on the cheek, nose, and mouth. Over objection, Hill testified that Twarowski told her that she was very afraid of defendant. When Hill and Twarowski left Bogey's Nightclub, they found that Twarowski's Geo Tracker had been vandalized. The windows were bashed in, the convertible top was slashed open, and their leather coats were missing. Hill further testified regarding an event at Frigate's Nightclub in February 1992. Hill, Twarowski, and a group of friends were leaving the club when Hill thought she noticed defendant's truck in the back of the parking lot. Twarowski and another friend left the parking lot first, and then some other friends followed in their car. The truck left next, followed by Hill and a friend. Hill was not sure, but thought the license plate on the truck read FF or FLFD, for Fox Lake Fire Department. Later testimony revealed that the license plate on defendant's truck read FLFFEMT. The truck continued to follow Twarowski's vehicle for at least five miles. When Twarowski turned, the truck went straight and followed the other car. Hill got close enough to the truck to confirm that defendant was the driver.

Brian Kiesgen, a close friend of Twarowski's since grade school, testified that he was surprised to see defendant at Bogey's Nightclub on January 11, 1992. Kiesgen saw defendant and Twarowski dancing and then went to the bathroom. When he came back, Twarowski was "all bit up," and they called the police. The court provided a limiting instruction that the evidence was being received on the issues of defendant's identity, intent, and motive.

Jessica Murray, Twarowski's best friend since grade school, testified that at the end of March or the beginning of April 1992, she and Twarowski went to Frigate's Nightclub together around 9 p.m. to meet some friends. Later that evening, defendant arrived, and Murray saw him arguing with Twarowski for about 30 minutes. Defendant was very angry and Twarowski was surprised to see him.

Helen Sibiski, who worked with Twarowski from 1990 to 1992, testified that she was like a second mother to Twarowski. On November 19, 1991, in the early morning, she received a call from Twarowski. Twarowski was "very upset" and "crying hysterically." Sibiski told Twarowski to come to her house, and Twarowski arrived about 30 seconds later. Sibiski met Twarowski in her driveway and noticed that Twarowski's face was extremely red and that she had marks on her throat. Twarowski, still crying hysterically, said "Helen, this time I thought he was going to kill me." Twarowski then showed Sibiski places on her head where it looked like small portions of her hair had been pulled out. Twarowski told Sibiski that defendant had thrown her onto a bed and put his hands around her neck.

Gordon Kiesgen testified that he was defendant's neighbor in 1992. On May 2, 1992, three days before her death, Twarowski and defendant were outside, and defendant told Gordon that he was getting back together with Twarowski. Although he and Twarowski had had some problems in the past, defendant had received counseling and felt their relationship was going in the "right direction." According to Gordon, Twarowski's car, a Geo Tracker, was kept in the garage and "out of the sight" of Twarowski's parents.

McHenry County Detective Sergeant Christopher Pandre testified as follows. On May 6, 1992, he and his partner, Undersheriff Eugene Lowery, interviewed defendant at St. Therese Hospital, where defendant worked. When asked, defendant said he and Twarowski co-owned a Geo Tracker. Sergeant Pandre told defendant the car was found with a large amount of blood in it. Defendant responded, "Where's Kathy? You can check my alibis." When Sergeant Pandre informed defendant that Twarowski was found dead, defendant did not respond. Defendant told the officers that he last saw Twarowski on May 3, 1992, at her parents' house where he talked with her in the driveway. According to defendant, he did not see Twarowski on May 4, 5, or 6. He described their relationship as "just buddies," although when asked about the future, defendant said that he and Twarowski still had plans to get married.

Defendant told Sergeant Pandre that he was studying to a be a paramedic. On May 5, 1992, he called Twarowski at 6:30 p.m. to ask her to help him study for a paramedic examination. She agreed to do so, but then called back around 6:50 p.m. to say she was going to stay home and study. According to defendant, on May 5, 1992, he came home from work around 8:30 p.m. and called Cynthia Beck to help him study. Cynthia declined because she did not feel well. Defendant did some chores around the house, watched television, and then fell asleep around 11 p.m. Although defendant was...