People v. Free

• Decision Date: 24 January 1983
• Docket Number: No. 52775,52775
• Citation: 447 N.E.2d 218,69 Ill. Dec. 1,94 Ill.2d 378
• Parties: , 69 Ill.Dec. 1 The PEOPLE of the State of Illinois, Appellee, v. James P. FREE, Jr., Appellant.
• Court: Illinois Supreme Court

Page 218

447 N.E.2d 218

94 Ill.2d 378, 69 Ill.Dec. 1

The PEOPLE of the State of Illinois, Appellee, v. James P. FREE, Jr., Appellant.

No. 52775.

Supreme Court of Illinois.

Jan. 24, 1983.

Rehearing Denied April 8, 1983.

Mary Robinson, Deputy State Appellate Defender and Paul J. Glaser and Kyle Wesendorf, Asst. State Appellate Defenders, Elgin, for appellant.

J. Michael Fitzsimmons, State's Atty., Wheaton (Thomas L. Knight, Chief, Crim. Div. and Barbara A. Preiner, Asst. State's Attys., Wheaton, of counsel), and Daniel E. May, Villa Park, for the People.

RYAN, Chief Justice:

James Free was indicted in the circuit court of Du Page County for the murder (Ill.Rev.Stat.1977, ch. 38, par. 9-1) and attempted rape of Bonnie Serpico (Ill.Rev.Stat.1977, ch. 38, par. 8-4) and for the attempted murder and attempted rape of Lori Rowe. At the conclusion of the trial, the jury returned verdicts of guilty on all counts. The prosecutor requested a hearing to determine whether the death penalty should be imposed. (Ill.Rev.Stat.1977, ch. 38, par. 9-1(d).) The jury found unanimously beyond a reasonable doubt that the victim was murdered in the course of a burglary and a rape, both of which are aggravating factors supporting the imposition of the death penalty. (Ill.Rev.Stat.1977, ch. 38, par. 9-1(b)(6)(c).) The jury also found no mitigating factors existed to preclude the imposition of the death penalty. (Ill.Rev.Stat.1977, ch. 38, pars. 9-1(c), (g).) The trial judge entered judgment sentencing the defendant to death. The defendant was also sentenced on the other counts of attempted murder and attempted rape. The death sentence was stayed (73 Ill.2d R. 609(a)), pending direct appeal to this court, pursuant to Rule 603 (73 Ill.2d R 603). For the reasons expressed in this opinion, we affirm the convictions and the sentences.

The circumstances of the crimes were testified to by Lori Rowe. The defendant testified but claimed not to have any actual recollection of the circumstances surrounding his criminal acts.

Lori Rowe began work shortly before midnight on April 24, 1978, at the M-2 Service Center, an all-night keypunch business. It is located in a large office complex known as the Glen Hill Office Complex in Glen Ellyn, Illinois. Shortly before 4 a.m., while Lori Rowe was sitting at her desk, she saw a stranger, later identified by her as the defendant, standing just inside the door. Bonnie Serpico, the only other employee present, was in a back room. The defendant held a gun in his left hand and a cloth bag in the other.

As Lori Rowe approached the defendant, Bonnie Serpico came out of the back room. The defendant ordered both women into the back room. He forced them, at gunpoint, into the lunchroom and ordered them to lie down on their stomachs, which they eventually did.

The women asked him what he was there for and if he wanted their money. The defendant stated that he did not want their money, but that they should take off their clothes because he wanted to rape them. Rowe started to cry, and Serpico tried to persuade the defendant to take their money and leave the office. The defendant again stated that he did not want their money and turned toward Rowe, telling her to remove her clothes. Serpico continued trying to reason with the defendant, but he stated, "I've done this before." As he made that statement, he moved toward Rowe and took some twine out of the cloth bag he was carrying. He told her to put her hands behind her back.

After securely tying Rowe, the defendant took Serpico into the other room. As they were going into the other room, Serpico looked in his bag and commented "you came prepared for this." The defendant replied, "Yes, I've all sorts of stuff in there."

After Serpico and the defendant went into the next room, Rowe began struggling to get loose. She heard Serpico say that she had her clothes off and the defendant responded "get on your stomach, put your hands behind your back. I want to tie your hands." Serpico urged the defendant not to tie her hands, pointing out that she had not resisted the defendant.

In the meantime, Rowe managed to get her shoes off and was attempting to get the rope off her feet. The defendant came into the room to check on Rowe, and he saw that Rowe had loosened the rope. He became angry and yanked the rope, pulling her sideways until she fell onto her side.

While lying on her side, Rowe heard Serpico get up and run. The defendant started running after her. Seconds later Rowe heard a gunshot. The defendant then ran back into the room where Rowe was lying. Rowe was sitting up now and the defendant pointed his gun at her and she cried "oh no." As she lowered her shoulder and turned away from the defendant, he shot her and ran from the building.

With her hands still tied behind her back, Rowe managed to crawl out to the main office area where Serpico lay dead. Rowe was able to pull the telephone off a desk and contact the police. She remained there until the police arrived about 15 minutes later.

An autopsy revealed that the cause of Serpico's death was exsanguination, or severe loss of blood, related to a gunshot wound.

Through a police investigation, suspicion focused on the defendant, who was arrested early the next morning, April 25, 1978, in a house owned by his father in Dubuque, Iowa. He was charged with one count of murder and attempted rape against Bonnie Serpico and one count of attempted murder and attempted rape against Lori Rowe.

The jury found the defendant guilty on all counts. At a sentencing hearing on the murder conviction, as noted, the jury found that Bonnie Serpico was killed in the course of a rape and a burglary and that no mitigating factors existed sufficient to preclude imposition of the death sentence. The trial judge entered a judgment sentencing the defendant to death. At a later sentencing hearing, on the other convictions, the court sentenced the defendant to serve two concurrent 15-year prison terms for the two counts of attempted rape and a consecutive 30-year sentence for the attempted murder.

The defendant has raised some 16 issues to be resolved on this appeal. Other facts relevant to their resolution will be set forth with the discussion of each particular issue. Several issues raised in this case have been resolved in prior opinions of this court and will not be further discussed in this opinion. The defendant challenges the constitutionality of our death penalty statute, which was resolved in People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 34 Ill.Dec. 137, 397 N.E.2d 809. The defendant argues that our statute does not include attempt (here, attempted rape) in the list of aggravating factors which trigger eligibility for the death penalty. That issue was resolved against the defendant in People v. Walker (1982), 91 Ill.2d 502, 64 Ill.Dec. 531, 440 N.E.2d 83. Defendant argues that the trial court erred when it held it has no power or discretion to disregard a jury's verdict in a death penalty proceeding and must enter judgment on that verdict. That was resolved, contrary to defendant's position, in People v. Lewis (1981), 88 Ill.2d 129, 58 Ill.Dec. 895, 430 N.E.2d 1346, and People v. Gaines (1981), 88 Ill.2d 342, 58 Ill.Dec. 795, 430 N.E.2d 1046. Also previously rejected were the contentions that the appellate review procedure provided by our statute is inadequate (People v. Brownell (1980), 79 Ill.2d 508, 541-44, 38 Ill.Dec. 757, 404 N.E.2d 181; People v. Gaines (1981), 88 Ill.2d 342, 383, 58 Ill.Dec. 795, 430 N.E.2d 1046; People v. Lewis (1981), 88 Ill.2d 129, 146-47, 58 Ill.Dec. 895, 430 N.E.2d 1346), and that defendants sentenced to death are denied relief under the Post-Conviction Hearing Act (Ill.Rev.Stat.1977, ch. 38, par. 122-1 et seq.), in violation of their constitutional rights. People v. Gaines (1981), 88 Ill.2d 342, 384-86, 58 Ill.Dec. 795, 430 N.E.2d 1046.

As to the issues to be decided in this case, we first consider whether a motion to suppress certain physical evidence should have been granted.

Through police investigation it was learned that the alleged assailant was James Free, a former employee of the Glen Hill Office Complex. On Sunday, April 23, 1978, another incident involving the defendant occurred. It was reported by several women working at the office complex that a man, later identified by them as the defendant, came into their office. The women questioned him, and he said that he had come to clean the carpet. He walked through the office and then left.

Two of the women, Julie Kelly and Mary Ferrier, went down to the basement to a vending machine. They saw the defendant walk past the doorway. When they went back into the hallway, they observed him staring at them through a window. They ran back to their office and later received a phone call from a person with a male voice. The caller described the women who had been in the basement and stated that they had left change in the vending machine. He suggested they come down to get their change. The women knew they had not left any change and refused to go down to the basement. They then saw the defendant riding around the parking lot of the office complex in a red Ford pickup truck.

The police talked with the manager of the Glen Hill Office Complex, and he stated that the description of the offender and the vehicle driven by the offender matched that of James Free, a former employee of the construction company that built the complex and of the complex itself. He was later identified in a photo lineup by Lori Rowe as her assailant. Further information led the police to believe that the defendant was residing at his parents' townhouse in Dubuque, Iowa, on leave for 30 days from the army.

On April 25, 1978, Detective Velon and two other Glen Ellyn, Illinois, police officers accompanied Iowa officers to the Free townhouse in Dubuque. The police had an arrest warrant for James Free for murder and attempted murder. Emergency...