People v. Green

• Decision Date: 16 January 1991
• Docket Number: No. 1-87-2358,1-87-2358
• Citation: 154 Ill.Dec. 92,568 N.E.2d 92,209 Ill.App.3d 233
• Parties: , 154 Ill.Dec. 92 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Maurice GREEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 92

568 N.E.2d 92

209 Ill.App.3d 233, 154 Ill.Dec. 92

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Maurice GREEN, Defendant-Appellant.

No. 1-87-2358.

Appellate Court of Illinois,

First District, Third Division.

Jan. 16, 1991.

Randolph N. Stone, Public Defender of Cook County, Chicago (Donald S. Honchell, Asst. Public Defender, of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty. of Cook County, Chicago (Renee Goldfarb, William D. Carroll, and Karlene Behringer, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice FREEMAN ^* delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Maurice Green was convicted of murder, aggravated criminal sexual assault and unlawful restraint. (Ill.Rev.Stat.1985, ch. 38, pars. 9-1(a)(1), 12-14(a)(1), 10-3(a).) Defendant was sentenced to an extended term of 60 years' imprisonment for murder, 60 years' extended term for aggravated criminal sexual assault, to run consecutively to the term for murder, and three years for unlawful restraint, to run concurrently with the term for aggravated criminal sexual assault. Defendant appeals, contending that: (1) the trial court erred in instructing the jury on the proper burdens of proof for voluntary manslaughter; (2) the trial court erred in permitting certain evidence to be taken into the jury room during deliberations; (3) a combination of errors in closing arguments denied him a fair trial; (4) the trial court erred in imposing an extended term sentence for the aggravated criminal sexual assault conviction; (5) the trial court erred in considering the death of the victim as a factor in sentencing; and (6) since the extended term sentence of aggravated criminal sexual assault was influenced by defendant's conviction for murder, if a new trial is ordered on the murder charge, the court should order reconsideration of the sentence for aggravated criminal sexual assault. We affirm in part and reverse in part.

The record reveals that on June 7, 1985, at about midnight, defendant visited M.H., the victim, at her apartment in Chicago. The victim shared her apartment with B.J., her 15-year-old daughter, and her stepson, R.J. Defendant and the victim had been friends for about eight years, and he knew both of her children.

Defendant and the victim went into the victim's bedroom where they shared some cocaine. After using all of the drugs, the couple went out to purchase more. The two separated and defendant returned to the victim's apartment at about 2:45 a.m. and smoked more cocaine.

At some point during the early morning of the 8th, the victim left the bedroom. While she was out of the room, defendant took a small packet of cocaine and put it in his shirt pocket. When the victim returned she noticed that a packet was missing. She asked defendant about the missing packet and he denied having taken it, telling her that she had miscounted the packets. The victim told defendant that he was not leaving until she found the missing packet.

The victim then reached for defendant, in a playful manner, and he pushed her away. The victim reached again and again defendant pushed her away. When the victim reached for him a third time, defendant grabbed a large glass decanter and struck her on the top of her head. The victim fell into his arms and he hit her a couple more times. The victim then fell against the bed and slid onto the floor.

Defendant then sat down on the bed and cooked another packet of cocaine. Moments later, while defendant was seated on the bed, the victim's foot hit his leg. Defendant looked and saw the victim's cheeks and lips were moving and he heard her moaning. He then picked up a green champagne or wine bottle and hit the victim in the head three or four more times. The bottle broke.

Defendant then left the bedroom, went into the kitchen, got a 7-Up bottle and returned to the victim's bedroom. He removed her .32 caliber handgun from underneath her pillow and went into B.J.'s bedroom. He did not recall whether he struck the victim with the 7-Up bottle.

B.J. testified as follows. On the evening of June 7, 1985, defendant knocked on the door of the apartment and identified himself. B.J. then knocked on her mother's bedroom door and told her of defendant's presence. The victim told B.J. to tell defendant that she was not available. She did not want to be bothered with him.

B.J. eventually allowed defendant to come inside the apartment. Once inside, the victim invited defendant into her bedroom. Later, after Beth had eaten, she went into her bedroom, closed the door, turned on the radio and went to sleep.

Later, she was awakened by defendant walking in and out of her room. B.J. described that at times, as defendant knelt by her bed, she could see and smell smoke. B.J. did not let defendant know she was awake.

Finally, defendant told her to wake up. She told him to leave her alone, but defendant told her to get up, that he had a gun. Defendant then raised the gun and told her that he didn't want to kill her. On his order, B.J. touched his face. He then told her that he just wanted to put his face between her legs. Defendant continued to point the gun at her as he removed her underpants and put his tongue inside of her vagina. Defendant would leave the room, return and repeatedly sexually assault B.J. B.J. could not remember how many times this had occurred, however, she did remember that it happened more than twice. Once, after leaving the room and returning, defendant told B.J. to lie on her stomach and he then put his tongue inside of her anus. B.J. recalled that this happened only once.

B.J. also testified that defendant laid on top of her, holding the gun down by his side, and told her to touch him. She complied. During this time B.J. heard her brother R.J. as he was starting to unlock and come in the back door of the apartment. Defendant then got up, ran to the door and pushed it closed. R.J. identified himself and asked defendant what was going on. Defendant told R.J. to get away from the door. R.J. left and telephoned the apartment.

B.J. spoke with R.J. on the phone. After speaking with R.J., defendant told her to dial 911. As the 911 service rang, defendant snatched the phone away from B.J. and he spoke with the person who answered. Subsequently, at about 8 a.m., the police arrived. B.J. spoke with them on the telephone and was told that defendant was going to release her. Until the time that she was released, defendant would not allow her to leave the apartment; he kept her in a closet in the bathroom, leaving the closet door ajar.

After being released B.J. went upstairs to a neighbor's apartment where she met with the police and R.J. R.J. asked B.J. whether defendant had allowed her to go into her mother's room. B.J. responded negatively. R.J. then told the police that his mother was still in the apartment.

B.J. recalled that at some time during this ordeal she asked defendant about her mother. He responded that the victim had gone out with his money and would return. B.J. identified photographs of the apartment which depicted that defendant had placed a chair in front of the entry into the apartment. She also identified a window in the kitchen of the apartment with two bullet holes shot by defendant.

Officer Dennis Banahan testified that on June 8 he responded to a call at M.H.'s apartment. Upon knocking on the door and identifying his office, defendant told him to get away and that he had a gun. Banahan asked and defendant consented for him to speak with B.J.. B.J. was crying and informed Banahan that she was alright. Banahan again attempted to persuade defendant to release B.J., however, defendant told him to get away from the door. Banahan then went outside the building and contacted the Hostage Barricade Terrorist Unit.

Thomas Johnson, a detective with the Hostage Barricade Terrorist Incident Program, made telephone contact with defendant. Defendant permitted B.J. to speak with him. B.J. told Johnson that defendant was pointing a gun at her. Johnson asked to speak with defendant again. Defendant then took the phone away from B.J. and hung it up.

Several minutes later, Johnson telephoned the apartment again and attempted to persuade defendant to surrender. Defendant told Johnson that he wanted to talk to Mary because she owed him some money. Johnson asked him to release B.J., however, defendant said that he could not. The telephone conversation lasted several minutes, then defendant hung up.

Johnson made several attempts to telephone the apartment for the next few hours. Finally, at about 8:15 a.m. defendant released B.J. Johnson continued to talk with defendant to convince him to come out. At about 9:15 a.m. defendant came to the rear door of the apartment and threw out the gun. Defendant then told Johnson that he had killed Mary over cocaine, but he refused to surrender. At about 10:25 a.m., after continued negotiations, defendant came out of the apartment. He was then handcuffed, taken back inside the apartment and given Miranda warnings.

Subsequent to defendant's arrest he was taken to the police station and after again being advised of his rights he made a statement to Detectives Patrick Carroll and Michael O'Connor of the Chicago Police concerning the incident. He subsequently made a second statement to Assistant State's Attorney Mark Schroeder which Schroeder summarized and defendant signed.

Defendant's first contention is that the jury was improperly instructed on the burden of proof for voluntary manslaughter. He claims that the instruction placed the burden of proof on the State to prove that defendant "acted under a sudden and intense passion resulting from serious provocation by another." He maintains, relying on People v. Reddick, (1988), 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141, that placement of the burden on the State rendered the instruction invalid. Therefore, he...