People v. Fisher

• Decision Date: 03 May 1988
• Docket Number: No. 85-2616,85-2616
• Citation: 523 N.E.2d 1119,120 Ill.Dec. 208,169 Ill.App.3d 915
• Parties: , 120 Ill.Dec. 208 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth FISHER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1119

523 N.E.2d 1119

169 Ill.App.3d 915, 120 Ill.Dec. 208

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth FISHER, Defendant-Appellant.

No. 85-2616.

Appellate Court of Illinois First District, Second Division.

May 3, 1988.

Rehearing Denied May 24, 1988.

William A. Swano, Chicago, and Timothy P. O'Neill, O'Neill & Rutherford, River Forest, for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Thomas V. Gainer, Jr., Rimas F. Cernius, Nancy Black, Chicago, for plaintiff-appellee.

Justice BILANDIC delivered the opinion of the court:

Defendant, Kenneth Fisher, and his cousin, Johnny McGhee, were jointly indicted for murder, armed robbery, robbery, attempt rape and unlawful restraint. A defense motion for severance was granted. After an extensive hearing, the trial court granted defendant's motion to suppress a written confession, but denied his motion to suppress certain oral statements. Prior to trial, the State nolle prossed the unlawful restraint charge. At defendant's jury trial, the court directed a verdict in favor of the defendant on the charges of armed robbery, robbery, murder predicated on armed robbery, and murder predicated on robbery. The jury returned a verdict of guilty of murder and attempt rape. After denying defendant's motion for a new trial, the court sentenced defendant to 60-years for murder and 15-years for attempt rape, the sentences to run concurrently. McGhee was tried separately and is not involved in this appeal. ¹

On May 27, 1984, at about 8:30 a.m., some boys discovered the body of the victim, Thelma Fisher. Clues found at the scene led police to Troy Fisher, the victim's father, and Shirley Forrester, who is the mother of defendant Kenneth Fisher and the aunt of the victim. The victim was the cousin of the defendant. Both parents, Troy Fisher and Shirley Forrester told the police that the last time they saw the victim was the night before. She was in the company of defendant Fisher, Johnny McGhee and Marilyn Green. Defendant's mother told the police that her son was in custody at the 13th District Police Station on an unrelated theft charge.

The first police contact with the defendant was made at 1 p.m. at the 13th District Station, approximately four-and-one-half hours after the victim's body was discovered. They saw defendant in the lock-up. He was not wearing a shirt, his pants were full of blood from the knees down, his gym shoes had blood on the tongue area, top and sides. Defendant was read his rights and agreed to answer questions. He said he was with the victim, a girl friend and McGhee the previous night. He was then transferred to Area 4 Headquarters.

As detectives inventoried defendant's clothing, they noticed a plastic bag of marijuana protruding from his underwear. The front and rear of his underwear was blood-stained and both of his knees were scraped. Photos were taken of his knees.

Next, the detectives located defendant's car and found blood on the hood, right front hub cap and rear. A leather metal studded bracelet, which was also blood-stained, was found in the car. A stereo speaker appeared to have been removed. It was found in the trunk. It had wires similar to those found at the crime scene.

At about 5:30 p.m., the detectives spoke to Marilyn Green who told them that she was with the victim, defendant and McGhee the previous evening. Prior to joining the defendant and McGhee, she and the victim went to a girl friend's home where the victim took a shower, put on a new bra and new underwear and fresh clothes. They later met defendant and McGhee whom the victim introduced as her cousins. After visiting some taverns and drinking, Ms. Green was taken home. During the evening, they ran into the victim's father and the defendant stopped at home briefly and argued with his pregnant wife. The last thing she heard defendant say to the victim as he drove away was "we have something to do" and the victim yelled "hey, wait a minute."

The detectives next spoke with defendant at about 7 p.m. after reading him his Miranda rights. At this time, the defendant told them that he, McGhee and the victim had been where the victim's body was found the evening before. The defendant claimed that he saw his marijuana tucked into the victim's waistband and the two argued over it. During the course of the argument, defendant reached down, picked up a rock and hit the victim in the forehead causing her to fall. Next, defendant stated that McGhee got some stereo speaker wire and began to tie the victim up. McGhee then picked up a larger rock and struck the victim five or six times and then dropped the rock on her face. Defendant picked the rock up off her face. He noticed that the victim was wearing a studded leather bracelet that he had given her and he removed it from her hand. Then defendant and McGhee drove off.

Later during the evening of May 27, 1984, Assistant State's Attorney John Hynes arrived at the station where the defendant and McGhee were being held. He spoke with the defendant after reading him his Miranda rights. Their first meeting took place at about 1 a.m. on May 28, 1984.

At this time, defendant repeated his prior story adding that before leaving the scene, he checked to see if the victim was still alive and it appeared that she was not breathing. Defendant drank another beer and while driving away, he looked through the victim's purse and threw it out the car window.

After speaking with McGhee, Mr. Hynes returned to speak yet again with defendant. After his Miranda rights were read, defendant admitted that he may have struck the victim twice and that he may have tied the wire around the victim's wrist. All of the defendant's oral statements were admitted in evidence at trial.

Dr. Yuksel Konacki, of the Medical Examiner's Office, testified that he performed a post-mortem examination on Thelma Fisher. His initial exam revealed that her body was bloody, partially covered with mud and it showed multiple injuries, many lacerations, abrasions and contusions. His examination further revealed at least 15 lacerations to the head caused by blunt trauma. Additionally he noted two lacerations to the mouth and four to the chin, all caused by blunt trauma. He further noted six parallel abrasions to the left side of her neck caused by pressure applied to her neck, possibly with a cord. Additionally, her left clavicle was fractured. Also, there were several abrasions on both sides of her chest. Dr. Konacki testified that these injuries were consistent with blows from the small rock and larger boulder-type rock that were recovered from the scene. Additionally, there were marked facial bone fractures. Dr. Konacki also found contusions and abrasions on her right elbow, left hand, right wrist, right hand, left thigh and the front of both legs. Her right index finger was broken at the base.

Dr. Konacki further found several hemorrhages on the surface of the victim's eyes. Additional hemorrhages were found inside her neck and around and on the larnyx and trachea. These were all consistent with strangulation or asphyxiation. The victim also suffered from a y-shaped skull fracture that was imposed prior to her death. He also noted several contusions and hemorrhages on the base of her brain. In the area of her neck, her hyoid bone was fractured on the right side. This fracture is consistent with strangulation. Also, there were hemorrhages on her tongue. In his opinion, these injuries occurred prior to her death. He also observed several areas of hemorrhages to her heart.

Dr. Konacki testified that the victim's death was caused by asphyxia due to strangulation with cranial cerebral injury and internal chest injuries due to blunt trauma.

Sharon Ellis-Williams testified that she is a Chicago police officer assigned to the crime lab. She testified to various tests she conducted on the evidence in this case. Initially she testified that the victim's blood was Type A. Both defendant's and McGhee's are Type O. Ms. Williams went on to explain how these types are mutually exclusive relative to the tests she conducted. The victims fingernail clippings revealed dirt, rocks and blood. Her hair also revealed dirt, rocks and blood. Additionally, her pubic hair showed blood. Ms. Williams also found blood on the victim's bra, purse, shoes, comb and coat. Due to the fact that these items belonged to the victim, she did not conduct any tests to see what type blood it was.

The victim's bra revealed multiple damage. There were scattered torn areas in the bra and tears in both cups. The straps had been detached away from the back straps. Additionally, the clasp had been bent as if the bra had been forcefully removed.

Ms. Williams also examined the three rocks that had been recovered from the scene. All three had Type A blood on them. The smallest rock weighed five pounds, the medium one 12 pounds, and largest 48 pounds, two ounces. Additionally, swabs from stains on defendant's car revealed Type A blood on the trunk, hood and hubcap.

An examination of fingernail clippings of defendant revealed blood, but not enough for Ms. Williams to determine what type. Her examination further revealed Type A blood on defendant's shoe and pants. An examination of defendant's stained underwear revealed Type A on the front and back.

Defendant presented two witnesses, his aunt and his wife. They both testified that when they were at the police station, they saw the defendant briefly when he emerged to get a drink of water. At that time, he appeared to be fine but when they saw him the next day, it looked as though he had been beaten because he had scrapes on his nose. The police denied any brutality.

Defendant was convicted by the jury of murder and attempt rape. This timely appeal followed.

I.

Defendant's principal argument on appeal is that the State failed to prove him guilty of attempt rape. In spite of the fact that the jury returned a general verdict...