People v. Mackey

• Decision Date: 24 December 1990
• Docket Number: No. 1-87-2143,1-87-2143
• Citation: 566 N.E.2d 449,207 Ill.App.3d 839
• Parties: , 152 Ill.Dec. 762 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James MACKEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 449

566 N.E.2d 449

207 Ill.App.3d 839, 152 Ill.Dec. 762

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James MACKEY, Defendant-Appellant.

No. 1-87-2143.

Appellate Court of Illinois,

First District, First Division.

Dec. 24, 1990.

Randolph N. Stone, Cook County Public Defender, Chicago (Denise R. Avant, Karen E. Tietz, Asst. Public Defenders, of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty., Cook County, Chicago (Renee Goldfarb, James E. Fitzgerald, Marilyn F. Schlesinger, Asst. State's Attys., of counsel), for plaintiff-appellee.

Presiding Justice BUCKLEY delivered the opinion of the court:

Following a jury trial, James Mackey (defendant) was convicted of murder (Ill.Rev.Stat.1985, ch. 38, par. 9-1) and armed robbery (Ill.Rev.Stat.1985, ch. 38, par. 18-2) and sentenced to an extended term of 60 years. On appeal, defendant contends that (1) the trial court erred in denying his pretrial motion to quash his warrantless arrest and suppress subsequent statements, (2) the trial court erred in denying his pretrial motion to suppress his involuntary statements, (3) the trial court erred in failing to pose certain questions to the venire, (4) the trial court erred in refusing a jury instruction for voluntary manslaughter based on provocation, (5) the issuance of Illinois Pattern Jury Instructions, Criminal (2d ed. 1980) (hereinafter IPI Criminal 2d) on the offenses of murder and voluntary manslaughter based upon unreasonable belief of justification (IPI Criminal 2d Nos. 7.02, 7.06) were deficient and require a new trial, and (6) the trial court improperly imposed an extended term sentence on the armed robbery conviction.

At 11:30 a.m. on December 1, 1985, officers from the Chicago Police Department were summoned to a Dominick's Finer Food store in Chicago, where James Morgan directed them to the apartment of 36-year-old William Markowski, a CTA bus driver. Inside the apartment, police discovered Markowski lying on the floor in the bathroom, tied to the drain pipe of the sink. A subsequent autopsy of the body revealed the cause of death to be multiple stab wounds to the back, chest and neck. On December 3, 1985, defendant was arrested in connection with the incident.

Prior to defendant's trial, defendant filed a motion to quash his warrantless arrest and suppress the resulting evidence, as well as a motion to suppress his statement on the ground that it was involuntarily given to police. The State offered the testimony of Chicago police officer Wayne Bunch at the hearing on the motion to quash arrest:

At approximately 4 p.m. on December 3, 1985, Officer Bunch received a call from Officers Kater and Bell to assist in a homicide investigation. A vehicle check on a car driven by Robert Wright had indicated that the car had been stolen in the course of a homicide. Upon searching the car, the officers found a license plate registered to the victim. After being advised of his Miranda rights, Wright told the officers that he had obtained the automobile from his friend, "Red," also known as James Mackey, who was staying at Wright's mother's house with him at 6338 South Hermitage in Chicago. At approximately 4:15 or 4:20 p.m., Officer Bunch proceeded to this address without a warrant, entered the house, and arrested defendant.

At the hearing on defendant's motion to suppress his statement, the following evidence was adduced: Chicago police detective John Fitzsimmons testified that he and his partner, Detective Lawrence Thezan, assisted Detectives Bittenbinder and Mahon in the homicide investigation on December 3, 1985, after defendant had been transported from the District 7 police station at 6120 South Racine to the Area 6 police station at Western and Belmont Avenues. The four officers interrogated defendant at various times after advising him of his Miranda rights. Fitzsimmons questioned Wright and Sappington separately during this time, although he could not recall the sequence of the conversations. Defendant denied his participation in the offense on at least three occasions, after which Fitzsimmons showed defendant to Wright and Sappington, both of whom were located in separate interview rooms on the same floor.

Detective Thezan testified that he spoke with defendant, who was wearing a thick, white paper suit because his clothing had been seized for evidence, for a period between one and two hours when he came on duty at approximately midnight on December 4, 1985. Thezan later stated that he spoke to other people before his conversation with defendant. Between 2 a.m. and 10:39 a.m., Thezan spoke with defendant two or three times and he showed defendant to either Wright or Sappington. Defendant made his statement to Detectives Fitzsimmons and Thezan in the early morning hours of December 4, 1985, and only Officers Thezan, Fitzsimmons, and Mahoney saw defendant from midnight to the time the assistant State's Attorney arrived to take defendant's statement.

The assistant State's Attorney began the court-reported statement at 10:39 a.m., with its conclusion at 10:53 a.m. Fitzsimmons and Thezan denied that any one hit defendant, or threatened to arrest his girl friend and take his children away if he did not make a statement.

Wright, testifying on behalf of defendant, admitted that he was serving a two-year prison term for possession of a stolen auto as a result of the December 3 incident. He testified that after the police stopped the stolen car he was driving, which bore only one license plate instead of the required two, he informed police that he had obtained the car from defendant and that defendant lived with Wright at the home of Wright's mother. The police proceeded to his house and arrested the fully dressed defendant. Both Wright and defendant were brought to the 61st and Racine police station, where they remained several hours until transported to the Western and Belmont police station. There, police took them to separate rooms, "approximately five doors down."

Wright observed defendant on two occasions when he looked out the interview room's door window. Defendant was naked inside his interview room on the first occasion and standing naked outside the interview room on the second occasion. While in the interview room, Wright heard "[n]oises like somebody was getting slapped or hit" from the direction where defendant was located. Wright did not repeat these observations before the grand jury later that day.

Sappington, testifying on behalf of defendant, stated that she lived with defendant on December 3, and they had three children. Two policemen entered the house and stated that they had a warrant for defendant's arrest. She followed defendant to the 61st and Racine police station at 2 p.m., but returned home. Police returned to her residence at 11:45 p.m. and brought her to the Western and Belmont police station, where they informed her that she was under arrest for withholding evidence.

During the six conversations she had with police officers while in a second-floor interview room, police advised her that they would become violent and take her children away if she did not cooperate. Sappington "told the police what they wanted [her] to say." Around 9 a.m., Sappington observed defendant wearing a white suit and with a swollen face.

Defendant and the State stipulated that Dr. Scott Cooper of Cermak Health Services would testify that on December 13, 1985, he examined defendant and found "[f]lat-hand trauma to both ears, one week ago * * * accompanied with loss of hearing to the left ear. Tympanic membranes dull, injected, slight blood left lower central with possible healed perforation." Dr. Cooper's report made on December 13, 1985, states "hit by Chicago Police, trauma, and now accompanied with loss of hearing." An audiogram ordered on January 6, 1986, indicates that defendant at "one thousand hertz" could hear at zero to ten decibels in the right ear, but could hear in the left ear only at 50 to 60 decibels.

The parties further stipulated that the initial intake report made to Cermak Health Services on December 5, 1985, shows negative indications, except for ear, nose and throat trouble. The report notes no bruises on defendant's body, the only identifying mark of any kind being a tattoo on his right wrist. The report indicates that defendant stated he "received ear injury by CFD [sic ]."

The trial court denied both of defendant's motions, and the following evidence was thereafter adduced at defendant's trial before a jury:

James Morgan testified that he knew the victim for approximately two weeks on December 1, 1985, and that he had had a sexual relationship with the victim. While Morgan testified this relationship included having the victim perform fellatio on him and excluded anal intercourse, Chicago police detective Jerry Mahon stated that Morgan had told him that they had previously engaged in oral sex and anal sex. Morgan admitted that he had previously told an investigator that he at some time had refused the victim's request to have anal intercourse with him, but denied that the victim had asked Morgan to tie the victim up and have anal intercourse with him.

On December 1, shortly after 2 a.m., Morgan peered through the closed blinds on the front window of the victim's ground-level apartment at 528 West Wellington. He noticed a ransacked apartment and someone in blue jeans holding a silver object. The person holding the object turned off the light. Morgan heard a "colored man's" voice say, "Shut up. There is somebody coming" and the victim say, "[h]elp, help."

Morgan proceeded to the back window and attempted to look in, but observed only a light coming from the bathroom. He heard the victim yell "[h]elp, police, help" and heard "[a] lot of ransacking going on." Morgan ran to Dominick's on Broadway and telephoned the police.

When the police arrived, Morgan directed them to the victim's apartment and waited inside the police car....