People v. Shum

• Court: Supreme Court of Illinois
• Citation: 111 Ill.Dec. 546,512 N.E.2d 1183,117 Ill.2d 317
• Docket Number: No. 61446,61446
• Parties: , 111 Ill.Dec. 546 The PEOPLE of the State of Illinois, Appellee, v. Keith SHUM, Appellant.
• Decision Date: 02 April 1987

Page 1183

512 N.E.2d 1183 117 Ill.2d 317, 111 Ill.Dec. 546 The PEOPLE of the State of Illinois, Appellee,
v.
Keith SHUM, Appellant. No. 61446. Supreme Court of Illinois. April 2, 1987.
Rehearing Denied Oct. 5, 1987.

Page 1186

[111 Ill.Dec. 549] [117 Ill.2d 332] Neil F. Hartigan, Atty. Gen., Mark L. Rotert, Asst. Atty. Gen., Chicago, for appellee; Richard M. Daley, State's Atty., County of Cook, Chicago, Joan S. Cherry, Thomas V. Gainer, Jr., Sharon Johnson Coleman, Asst. State's Attys., of counsel.

Charles M. Schiedel, Deputy Defender, Office of the State Appellate Defender,

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[111 Ill.Dec. 550] Springfield, Lawrence J. Essig, Appellate Defender, for appellant.

Justice RYAN delivered the opinion of the court:

The defendant, Keith Shum, was charged by indictment in the circuit court of Cook County with the murder of Gwendolyn Whipple (Ill.Rev.Stat.1981, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)), the feticide of Whipple's unborn child (Ill.Rev.Stat.1981, ch. 38, pars. 9-1.1(a)(1), (a)(3)), the attempted murder of Theresa Conway (Ill.Rev.Stat.1981, ch. 38, par. 8-4), and the rape of both Whipple and Conway (Ill.Rev.Stat.1981, ch. 38, par. 11-1). A jury found the defendant guilty of all charges and the trial court accepted his waiver of a jury for sentencing. After hearing evidence in aggravation and mitigation, the court sentenced defendant to death on the murder charge (Ill.Rev.Stat.1981, ch. 38, pars. 9-1(b), (d), (h)), and to concurrent prison terms for the feticide conviction, both rape convictions, and the attempted[117 Ill.2d 333] murder of Conway (Ill.Rev.Stat.1981, ch. 38, pars. 1005-8-1, 1005-8-2). The death sentence was stayed (87 Ill.2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603). For the reasons set forth below, we affirm the defendant's convictions and the sentences imposed by the court.

The evidence shows that at the time of her death, Gwendolyn Whipple was nine months' pregnant. She lived with Theresa Conway and Conway's three children in a one-room apartment at 6617 Racine in Chicago. Conway was acquainted with the defendant, whom she knew only as Keith, through her boyfriend, Mark Aytchan. In fact, the defendant had visited the apartment both in the company of Aytchan and alone.

Between 11:15 and 11:30 on the evening of July 6, 1982, while Whipple and Conway were playing cards, they heard a knock at their apartment door. Both women asked who it was and the person responded "Keith." The women immediately invited the person to come in. Conway identified the man who entered the apartment that evening--the man she knew only as Keith--as the defendant, Keith Shum.

Upon entering their apartment, the defendant offered the two women some marijuana. After the three shared one "joint," the defendant remarked that Conway's boyfriend, Mark Aytchan, who was then in the Cook County jail awaiting trial on a burglary charge, had asked him to "keep an eye" on Conway and Whipple. Conway told the defendant that he was a liar because she had talked to Aytchan and that he had not mentioned any such conversation. Defendant became angry and pointed the tip of the umbrella he was carrying at Conway's left jaw until she could feel the sharp point. Conway pushed the umbrella away from her face, ran across the room, and grabbed a knife off the top of the dresser. In response, [117 Ill.2d 334] the defendant opened his jacket and pulled out a gun. Conway told the defendant that she thought the gun was just a toy. The defendant showed Conway the bullets in the gun and she dropped the knife.

The defendant ordered the two women to lie side by side, face down, across a bed that sat next to a window in the apartment. While this was happening, one of Conway's sons was awakened by the noise. The defendant went over to the boy and placed the gun against his forehead. Conway got up and pleaded with the defendant to shoot her instead of her son. The defendant told Conway to make her son lie down and ordered her back to the bed by the window.

The defendant walked to a position behind Theresa Conway and undressed her from the waist down. He proceeded to have sexual intercourse with her while holding the gun to the back of Gwendolyn Whipple's head. Conway testified that the defendant next undressed Whipple from the waist down. She also stated that the defendant had sexual intercourse with Whipple despite her protests that he was hurting her. After he had intercourse with both women, the defendant walked around to the front of the bed. He next forced both women to perform oral sex on him by threatening to kill them if they refused.

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[111 Ill.Dec. 551] At this point, the defendant walked to the window, opened it, and sat on the ledge. The defendant pointed the gun back and forth from left to right, aiming alternately at each of the women while telling them "I'm going to kill you." Theresa Conway testified that the next thing she heard was a bang, followed by another, and then followed by three more in rapid succession.

Conway received gunshot wounds to her right mandible, the right side of her neck, and her right arm. Whipple received a total of five gunshot wounds. One bullet entered her skull and lacerated the brain, two more [117 Ill.2d 335] struck her on the left side of her forehead and the remaining two struck her left shoulder.

When Conway raised her head to look around the room, the defendant had gone. Conway tried to rouse Whipple but discovered that her roommate had been shot. Conway ran from the apartment down a hallway toward the apartment of Gus and Marquita Wilson.

Gus Wilson testified that it was approximately 1 a.m., July 7, 1982, when he and his wife heard a persistent knock at the door of their apartment. Wilson opened his door to find Theresa Conway "with blood all over her hands," holding her wrist. Wilson stated that Conway told him she and Whipple had both been shot. Wilson also testified that when he asked Conway who had done this to her, she replied "Keith."

Wilson immediately went to the women's apartment and found Conway's three children unharmed. He checked Gwendolyn Whipple for a pulse but was unable to detect one. Wilson returned to his apartment and called for help. A paramedic, who arrived a short time later, testified that upon his initial examination Whipple showed no vital signs and that he was unable to detect any heart tones from Whipple's unborn child. He stated that in his opinion both Whipple and the fetus were dead when he arrived.

Conway was admitted to St. Bernard's Hospital at 1:15 a.m. on July 7, 1982. At approximately 2:30 that morning she was interviewed by two detectives from the Chicago police department. Conway gave the detectives a description of her assailant. She also told them that his name was Keith and that her boyfriend, Mark Aytchan, would know more information about him, including his last name. Conway also told the detectives that they could contact Aytchan in the county jail.

The detectives interviewed Aytchan at 3:30 that morning in the county jail. Aytchan informed the detectives[117 Ill.2d 336] that the only person that he could think of that Conway would be talking about was the defendant, Keith Shum. Aytchan gave the detectives the address where he knew the defendant was staying, 6418 Sangamon in Chicago.

The detectives proceeded to this address and were admitted to the defendant's apartment by his aunt, Bernice Shum. One of the detectives testified that the defendant was undressed and asleep on a couch when they arrived and that Bernice Shum woke him up to talk to them. The detective also stated that the officers identified themselves to the defendant, indicated to him why they were there, and informed him of his rights. The detective noted that when asked about the incident, the defendant denied any participation.

The defendant was taken from his apartment to St. Bernard's Hospital. There he was taken handcuffed to Conway's room. She immediately identified him as the person that had raped and shot her and Gwendolyn Whipple.

Prior to the beginning of trial, the prosecution indicated that if the defendant were found guilty, it would seek the death penalty. Moments before jury selection began the defendant tendered and filed with the court a waiver of his right to a jury during the penalty hearing. The trial judge rejected the waiver, indicating that it was his belief "that the defendant couldn't knowingly waive his right to the death penalty or the aggravation portion until * * * the appropriate time, * * * until he has heard all the evidence * * * against him." The court began jury selection by qualifying the jurors pursuant to Witherspoon v. Illinois

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[111 Ill.Dec. 552] (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.

At trial, expert testimony revealed that Gwendolyn Whipple's death was caused by the bullet that entered her skull and that her fetus died as a result of intrauterine[117 Ill.2d 337] asphyxia caused by the mother's death. Two doctors testified that Gwendolyn Whipple's full-term fetus could have survived outside its mother's womb.

The jury returned guilty verdicts on all charges. The defendant then tendered a second waiver of his right to a jury for the penalty hearing, which the court accepted. The court found that the defendant was eligible for capital punishment based on his conviction for a murder which occurred in the course of another felony "to wit, rape." Ill.Rev.Stat.1981, ch. 38, par. 9-1(b)(6).

The court then heard evidence in aggravation and mitigation. (Ill.Rev.Stat.1981, ch. 38, par. 9-1(h).) Included as evidence in aggravation was testimony by Theresa Conway and her mother as to the extent and duration of her injuries. In mitigation, defense counsel, Gwendolyn Anderson, testified as to her unsuccessful efforts to bring in witnesses to testify on the defendant's behalf and as to the unavailability of potential evidence...