People v. Lindsay

• Decision Date: 28 May 1993
• Docket Number: No. 2-91-0691,2-91-0691
• Parties: , 187 Ill.Dec. 181 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andrew LINDSAY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 389

617 N.E.2d 389

247 Ill.App.3d 518, 187 Ill.Dec. 181

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andrew LINDSAY, Defendant-Appellant.

No. 2-91-0691.

Appellate Court of Illinois,

Second District.

May 28, 1993.

Rehearing Denied Aug. 4, 1993.

G. Joseph Weller, Deputy Defender, Paul Alexander Rogers, Office of the State Appellate Defender, Elgin, for Andrew Lindsay.

Michael J. Waller, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, Martin P. Moltz, State's Attys. Appellate Prosecutors, Elgin, for the People.

Justice WOODWARD delivered the opinion of the court:

A jury convicted defendant Andrew Lindsay of the second-degree murder (Ill.Rev.Stat.1989, ch. 38, par. 9-2(a)(2)) of Judy North (the victim). The jury found by a preponderance of the evidence that, at the time defendant killed the victim by strangulation, he acted under the unreasonable belief that his conduct was necessary as self-defense (see Ill.Rev.Stat.1989, ch. 38, pars. 9-2(a)(2), 7-1). The trial court sentenced defendant to an extended term of 30 years' imprisonment, the maximum for second-degree murder, based upon its finding that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. Ill.Rev.Stat.1989, ch. 38, pars. 1005-5-3.2(b)(2), 1005-8-2(a)(3).

Defendant appeals his sentence, arguing that (1) the trial court abused its discretion in imposing the extended-term sentence, as the murder was not accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty; and (2) the trial court gave inadequate consideration to defendant's rehabilitative potential.

Since the only issues raised in this case concern the sentence defendant received, only those facts relevant to the sentencing issues will be discussed in any great detail.

By way of background, it is undisputed that, on December 9, 1990, following an act of prostitution which the victim had solicited from the defendant, the defendant strangled the victim by pressing an electrical cord from his stereo against her neck. Defendant wrapped tape across the victim's nose and mouth, placed her body in his landlord's garbage cart and deposited the body in a manhole. We will now discuss the relevant trial testimony.

Dr. Eupil Choi, a certified forensic pathologist, testified about the autopsy and his findings therefrom. The victim was 5 feet 4 inches tall and weighed approximately 135 pounds. Upon viewing the victim, he noted that her nose and mouth were covered with brown surgical tape; her whole face was swollen with a purplish discoloration; and there were bands of discoloration on both sides of the front of her neck. The back of her neck was not discolored. There was a small cut just below her right eyebrow and bruising on the right side of her forehead. The victim had "hemorrhagic changes" in both eyes. There were several bruises on both arms and scrapings on both sides of her knees.

Dr. Choi summarized the results of the internal examination he performed on the victim. There were two areas of hemorrhage in the temple area, as well as soft tissue hemorrhage in the neck area, including the esophagus, the tongue and the front neck area. The neck bone known as the soft thyroid cartilage was fractured.

Dr. Choi opined to a reasonable degree of medical certainty that the victim's death was caused by strangulation. This opinion was based primarily on the purplish discoloration of her neck and face and the swelling of her face. The injury to the victim's right eyebrow was the only open wound that Dr. Choi discovered. The bruising on the victim's forehead indicated that she was in some way bumped at about the time she died.

Dr. Choi further testified that when he removed the tape from the victim's mouth he found nothing else (such as a gag) in her mouth. Fluid was continuing to drain from the victim's mouth and nose. Dr. Choi could not be certain whether the tape was put on before or after the victim died. In general, strangulation of the type here causes death well within five minutes. However, a person could be alive after strangulation for some time. In such a case, blood draining from ruptured vessels could flow to the mouth and, if present in a sufficient amount, could suffocate the person. Under these circumstances, the tape over the victim's mouth could have contributed to her death. According to Dr. Choi's examination, the continuation of the fluid from the victim's mouth and nose was peri-mortem, i.e., it occurred around the time that the death occurred.

Defendant gave three differing versions of the events surrounding the victim's death. Prior to his trial, defendant first told police officers that after having sex with the victim, she asked him to go out and look for her girlfriend on Sheridan Road, which he did without success. As he was returning to his apartment, he noticed a black man putting a body in a hole in the alley in back of his apartment building. As the defendant watched, the man ran west. Defendant went to the hole in the alley, and by the light of his cigarette lighter, he saw the victim's body in the hole; a cord and tape were wrapped around her neck. Near the hole was the defendant's landlord's garbage cart, containing a blue blanket. Defendant checked the body for a pulse and found none. He heard a noise of some sort and, fearing discovery, ran to his apartment, where he noticed that the lights and the television were on. Defendant asked his landlord to call the police; eventually, defendant got through to the police. Defendant then went to his apartment; afraid that the police might see his footprints at the scene, he removed his tennis shoes and threw them into the trash.

After further questioning by the police, defendant gave the following account. After defendant and the victim had sex, she asked him for $150 for her services. When he told her he did not have any money, she hit him. Defendant stood up on the couch; the victim kicked him in the testicles, knocking him to the floor, where she kicked him again.

The victim went to the bedroom and returned with a hammer. As defendant, still in a state of undress, tried to leave, she swung at him with the hammer twice. Both times she missed, but the second time she swung, she hit herself in the eye and fell. Defendant got on top of her to calm her down. The victim got up, struck him in the arm with the hammer and kept hitting him. She hit him in the testicles for the third time; he fell onto the floor and lay still.

As defendant lay on the floor, the victim tried to pull some rings off his fingers, but he pushed her aside. She grabbed a knife, swung at him but missed. Defendant threw her to the floor. Noticing an electrical cord lying on the floor, he wrapped it around the victim's neck. She tried to hit him, but soon her arms fell to her sides. Defendant then reached for the telephone to call for help; as he did so, the victim started to hit him again. The defendant put pressure on the cord that was still wrapped around the victim's neck. As she tried to get the cord off, defendant saw blood coming from her nose, and her arms went limp.

Defendant became afraid; he had not meant to kill the victim, only to make her unconscious. The victim was making noises; unable to stand the sound, defendant wrapped tape around her mouth. He checked for a pulse and found none. Scared, defendant dressed the victim and covered her with a blanket.

Defendant then went outside to find a place to put the victim. He saw the manhole and removed the cover. He went back to the apartment and dragged the victim, who was too heavy to carry, down the back steps. Spotting the garbage cart, defendant put the victim in the cart with a piece of wood in the back to keep the body from falling out. When defendant saw a vehicle in the area, he ducked down, returned to the apartment and came back with a blue blanket and two clear plastic bags. Defendant put the bags around the victim's head, so as not to get blood on the blanket, covered the body with the blanket and pulled the cart down the alley to the open manhole. He put the victim in the manhole and put the piece of wood over the hole. Thinking he heard a noise, defendant ran back to his apartment with the blanket, plastic bags and the cart. He retrieved his tennis shoes, the spool of tape and a bandage from his apartment. He threw the tennis shoes in a trash can and the other items into a field. Later, he showed the police where he had put the items.

At trial defendant testified that prior to his arrest on the instant charge he had resided in North Chicago for about three months after completing his basic training in San Diego. Before enlisting in the Navy, he had lived in Beaver, Utah, with his wife and child. One week prior to the murder, his wife moved out because she was seeking a divorce. Defendant stated that he was 5 feet 9 inches tall and weighed about 130 pounds and that he had put on about 20 pounds since his arrest. Defendant then testified to the following version of the events surrounding the victim's death.

According to the defendant, when the victim first propositioned him, he told her he had no money and could offer her only food and a place to stay. They returned to defendant's apartment, where defendant fixed the victim a sandwich. Prior to the first act of sexual intercourse, defendant reminded the victim that he had no money, and the victim told him that it did not matter. However, after the second act of intercourse, the victim demanded a sum in excess of $100. When defendant reminded her that no money was to be involved, the victim became "really pissed off" and started hitting defendant's face with her hand. As defendant, who was naked, tried to grab her arms, the victim kneed him in the testicles. After he fell to the floor in intense pain, the victim kicked him in the ribs and groin.

While defendant lay on the floor, the victim left the...