People v. Kester
Citation | 34 Ill.Dec. 216,78 Ill.App.3d 902,397 N.E.2d 888 |
Decision Date | 27 November 1979 |
Docket Number | No. 78-335,78-335 |
Parties | , 34 Ill.Dec. 216 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James Steven KESTER, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
Theodore A. Gottfried, State Appellate Defender, Springfield, of counsel, Robert Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.
Michael M. Mihm, State's Atty., Peoria, John X. Breslin, State's Attys. Appellate Service Commission, Ottawa, Martin N. Ashley, Staff Atty., Ill State's Atty. Assn., Mount Vernon, Thomas R. Lamont, State's Attys. Appellate Service Commission, Springfield, for plaintiff-appellee.
This is an appeal from a judgment of conviction for aggravated kidnapping and unlawful restraint entered by the circuit court of Peoria County after jury trial.
Late in December, 1977, Vida Pope and Cheryl Oliver were arrested for burglary and theft. While in custody they were questioned about a home invasion which had occurred late in November, 1977. Both women admitted participation and said that the defendant, James Steven Kester, had done the planning.
On February 8, 1978, Vida Pope and Cheryl Oliver pleaded guilty to burglary and theft. Each was given a sentence of two to six years on each charge, all sentences to run concurrently. In return for testimony in the instant case each was to receive an additional sentence of two to six years to run concurrently with the previous sentences with credit for time served on those sentences.
On February 7, 1978, defendant was indicted on two counts of aggravated kidnapping and two counts of unlawful restraint.
At the trial Vida Pope testified that on Thanksgiving Day, November 24, 1977, she, Cheryl Oliver, and the defendant met at a grocery store. They had not seen one another since September when both women had left the drug rehabilitation program at Stonehedge Center in Peoria where defendant had been working as a counselor. At the time of the meeting defendant was working at the Danvers Packing Plant in Danvers, Illinois. He talked to Pope about helping her to get a job there.
On Friday, November 25, 1977, defendant went to the apartment where Pope and Oliver were living. They talked further about possible employment. Later that day Pope and the defendant went to the Danvers plant for defendant's paycheck. They could not get it, however, because only a warehouse employee was there and he could not disburse checks. Defendant and Pope returned to Peoria and agreed to meet the next day to work on defendant's car.
On Saturday, November 26, 1977, defendant again went to Pope's apartment. Defendant and Pope then went back to his house so that he could change his clothes before working on the car. While he was changing the defendant told Pope he had a way to get a lot of money with little chance of getting caught. He had worked at an Eagle store and knew how grocery stores were operated. A Brink's truck arrived at the Eagle store every Wednesday. Receipts by that time were between $30,000 and $50,000. The plan was to learn the name of a grocery store manager and then go to his house, hold his family hostage, and demand money for their safety.
Defendant and Pope then returned to Pope's apartment so that she could change clothes. While Pope was changing defendant told Oliver his plan.
Defendant and Pope drove to the garage where they planned to work on the car but it was closed, so instead they drove past the Eagle store in Madison Park and discussed the plan. Pope went into the store and pretended to apply for a job. She was told the manager's name but she could not find it in the telephone book. Since they could not find out where the manager lived, the defendant and Pope drove to the Kroger store in Madison Park. The manager of that store lived in a trailer park and the parties decided that trailers were too close together for them to avoid detection during the home invasion phase of their plan.
On Monday, November 28, 1977, Pope and the defendant went to the Kroger store on Wisconsin Street in Peoria where they learned the manager was Boyd Kilpatrick. Later that day they drove to Danvers, Illinois, and talked to the manager about defendant's pay and a job for Pope.
On Tuesday, November 29, 1977, Pope, the defendant, and Oliver went to the Kroger store on Wisconsin Street to look at Kilpatrick and decide if he were the type who would pay ransom to save his family and they agreed he was their man. When they could not find Kilpatrick's name in the telephone book, and knowing the cab company had a city directory, they called the Yellow Checker Cab Co. and learned Kilpatrick's home address. Pope and Oliver then drove to the Kilpatrick home. They saw a "For Sale" sign in front of the house. After returning to their home Pope called the realtor and found that the house was for sale and that the Kilpatrick's had three children.
Plans were finalized and on November 29, 1977, Pope and Oliver were to enter the Kilpatrick house and hold the family hostage. Defendant was to keep watch on the Kroger store and pick up the ransom money. Originally he was to wait in the Kroger parking lot but the plan was changed so that he was to wait in a telephone booth at the intersection of Nebraska and Wisconsin.
During the home invasion Pope wore a blue coat and a ski mask. She had gotten the coat from the defendant shortly before the occurrence. Oliver wore a ski mask and a scarf. Pope and Oliver gained entry by showing a gun. They told Mrs. Kilpatrick to telephone her husband at the Kroger store. She told her husband not to be upset but some people were in the house with a gun. She then gave the telephone to Pope who read instructions written by the defendant on a yellow sheet of paper. Kilpatrick was told that someone was watching him; he was to take the money from the safe, put it in a bag, and leave it next to a light pole in the parking lot. Then he was to go to the telephone booth at Nebraska and Wisconsin and he had ten minutes in which to do all that. After the telephone call Pope and Oliver tied up Mrs. Kilpatrick, cut the cords on both telephones, went through her purse and took some costume jewelry and some money.
Pope and Oliver left the Kilpatrick house and drove past Nebraska and Wisconsin where they found the defendant waiting. They realized there had been a misunderstanding. Defendant drove to the Kroger store to see if the money had been dropped and found that it was not there.
Later that night defendant saw a newscast which said Kilpatrick had misinterpreted the instructions. In any event, no money was in the bag which was dropped.
At trial Pope testified that the items taken from the Kilpatrick residence were destroyed or thrown away. The yellow paper was burned; the blue coat should have been burned but was not. Oliver's testimony was similar to Pope's testimony.
Several witnesses who testified for both the State and the defendant corroborated many details of the State's case.
The defendant testified and denied participation. His mother, stepfather and stepsister testified that he was at their home looking at pictures when the offense occurred.
Defendant sought to introduce testimony by Dr. Perry Davis, a psychologist and hypnotist, who had hypnotized defendant's mother, Edna Roten, however, the trial court ruled that his testimony was inadmissible. Defendant then made an offer of proof that if Davis were permitted to testify he would state that he hypnotized Roten by using a counting method. In that manner he enables an individual to recall a situation or date by asking him to recall incidents. In Davis' opinion this is effective and accurate. Reliability is dependent upon the depth of hypnosis and Roten goes into a trance in the deepest degree. Davis had hypnotized Roten many times and was familiar with her depth of trance.
While in the trance Roten recalled that the defendant arrived at her home at 7:00 P.M. on November 29, 1977, and remained there until 9:30 P.M.
Davis would testify that Roten was telling the truth and that he did not suggest to her what her testimony should be. In addition Davis would testify as to what Roten told him while she was in the trance.
The trial court refused to admit the testimony on grounds of doubtful reliability, hearsay, and invasion of the province of the jury who determines the credibility of the witnesses.
The defendant was convicted of kidnapping and unlawful restraint and was sentenced to serve not less than four nor more than twelve years imprisonment.
On appeal defendant raises the following issues: (1) whether his conviction based on the testimony of two convicted felons who were confessed heroin addicts and who were testifying under a plea agreement was sufficient to prove defendant guilty beyond a reasonable doubt when that testimony was filled with inconsistencies; (2) whether he was deprived of a fair trial by improper prosecutor conduct in both closing argument and cross-examination of the defendant; (3) whether he was denied a fair opportunity to present his defense and thereby denied due process of law by the trial judge's exclusion of a qualified expert witness offered to support the testimony of alibi witnesses; (4) whether he was deprived of a fair trial by the trial judge's statement to the jury that a prosecution witness entered a plea agreement in exchange for her truthful testimony.
Defendant argues that the testimony of Vida Pope and Cheryl Oliver was insufficient to convict him because they were confessed accomplices in the kidnapping; they were testifying under a plea agreement with the State; they were both heroin addicts at the time of the crime; they each had a record of prior felony convictions; their testimony contained numerous inconsistencies of material fact.
All of defendant's complaints concern matters which affect the credibility of the witnesses....
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