People v. Sims, 5-90-0287

• Decision Date: 04 May 1993
• Docket Number: No. 5-90-0287,5-90-0287
• Citation: 244 Ill.App.3d 966,612 N.E.2d 1011,184 Ill.Dec. 135
• Parties: , 184 Ill.Dec. 135 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paula Marie SIMS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1011

612 N.E.2d 1011

244 Ill.App.3d 966, 184 Ill.Dec. 135

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paula Marie SIMS, Defendant-Appellant.

No. 5-90-0287.

Appellate Court of Illinois Fifth District.

May 4, 1993.

Donald E. Groshong, Williamson, Webster, Groshong, Moorman & Falb, Alton, for defendant-appellant.

William Haine, State's Atty., Madison County, Edwardsville, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Gerry R. Arnold, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellee.

Justice WILLIAM A. LEWIS delivered the opinion of the court:

Defendant was convicted by a jury of the offenses of murder (Ill.Rev.Stat.1989, ch. 38, par. 9-1(a)), obstructing justice (two counts) (Ill.Rev.Stat.1989, ch. 38, par. 31-4(a)), and concealment of a homicidal death (Ill.Rev.Stat.1989, ch. 38, par. 9-3.1(a)). She appeals her convictions and her sentence of natural life without parole for the murder conviction. We affirm.

Before discussing the facts and issues in this bizarre and highly publicized case, we must first dispose of defendant's motion to supplement the record with a book about the investigation and trial of this case authored by the trial prosecutor, Don W. Weber, and a newspaper reporter covering the trial for the St. Louis Post-Dispatch, Charles Bosworth. (D. Weber & C. Bosworth, Jr., Precious Victims (1991).) Alternatively, defendant requests this court to remand this cause to the trial court for a hearing so that the book can be made a part of the record on appeal. In reply to the State's objection to the motion, the defendant also urges this court to take "judicial notice" of the book.

Defendant alleges in her motion to supplement the record that the first publication and printing of the book occurred in October 1991, after the record on appeal and defendant's brief were filed in this court. In her post-trial motion, defendant raised the issue that the assistant State's Attorney (prosecutor) was writing a book about the trial. The prosecutor admitted at the hearing on the post-trial motion that he had thought about and discussed writing the book with Charles Bosworth, Jr., during the trial; that he and Bosworth agreed to the project a week after the trial had ended; and that he signed a contract with the publisher to write the book a week before the sentencing hearing. The State's Attorney, William Haine, stated: "[I] was in on all discussions involving trial strategy, witnesses, arguments, argument to the court and to the jury. And at no time did a book come up."

Defendant claims that the book would show a conflict of interest by the trial prosecutor, prosecutorial misconduct, undisclosed discovery violations, and possible perjury by police witnesses. Defendant exhorts this court not to be "the only three people in the State who are forbidden to consider or know the contents of the book" and to do "poetic justice." Finally, defendant feels that "[i]t is ludicrous for the State to suggest that this Appellate Court should stick its head in the same [sic ] like an ostrich."

Defendant claims that this "situation is entirely unique and no case law or other precedent in point is known to exist." The only authority cited by defendant for allowing the record to be supplemented by the book is Supreme Court Rule 329 (134 Ill.2d R. 329). This rule states in pertinent part as follows:

"Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court or a judge thereof. Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth." (134 Ill.2d R. 329).

In construing Rule 329, the supreme court said:

"Rule 329, as the Committee Comments demonstrate, is a very broad provision whose object is to allow the record on appeal to be amended to correct inaccuracies, supply omissions, correct improper authentication, and settle controversies as to whether the record on appeal accurately discloses what occurred at trial." (People v. Chitwood (1977), 67 Ill.2d 443, 447, 10 Ill.Dec. 565, 567, 367 N.E.2d 1331, 1333.)

Rule 329 is not to be "used as a vehicle for introducing additional evidence into the record." (People v. Miller (1989), 190 Ill.App.3d 981, 989, 138 Ill.Dec. 771, 776, 548 N.E.2d 1, 6.) Further, the supplementation must have a basis in the trial court record (People v. France (1987), 163 Ill.App.3d 819, 114 Ill.Dec. 881, 516 N.E.2d 1036) and cannot be used to impeach or contradict the contents thereof. (People v. Miller (1989), 190 Ill.App.3d 981, 138 Ill.Dec. 771, 548 N.E.2d 1.) Here, the supplementation of the record with the book would introduce new evidence into the record, some of which, if the defendant's claims are accurate, would impeach and contradict matters of record.

The closest precedent that this court could find is People v. Sheridan (1977), 51 Ill.App.3d 963, 10 Ill.Dec. 34, 367 N.E.2d 422. In Sheridan, defendant attempted to supplement the record on appeal with the separate record of the defendant's accomplice who testified against defendant, to show that a deal had been made by the State and the accomplice for the accomplice's testimony. The court pointed out that this was not a proper supplementation of the record as contemplated by Rule 329. It was, instead, an attempt to introduce evidence not contained in the trial record, and the defendant was not permitted to supplement the record with this material. The same reasoning is applicable here.

In addition, this court cannot consider the contents of the book under the doctrine of "judicial notice." A court may take judicial notice of "that which everyone knows to be true." (People v. Snulligan (1990), 204 Ill.App.3d 110, 149 Ill.Dec. 429, 561 N.E.2d 1125.) However, we are not ready to accept everything that the prosecutor says or writes as being outside the area of controversy or so capable of being verified as to be beyond reasonable dispute. See M. Graham, Cleary and Graham's Handbook of Illinois Evidence, art. II, sec. 201 et seq. (5th ed. 1990).

This court cannot amend Supreme Court Rule 329 or stretch the doctrine of "judicial notice" beyond recognition simply because we have a "unique opportunity" or because this case may have received more publicity than the average case. It is often forgotten that the State is also entitled to fair treatment and justice, and that the State must be given the opportunity to rebut and defend against the serious charges leveled by defendant. We appreciate defendant's concern for judicial economy by settling all issues now rather than in future proceedings, but we are not so concerned with judicial economy that we totally ignore all the laws, rules, and procedures developed to protect all the parties involved in the litigation.

Furthermore, there is nothing in the record to assure the accuracy and veracity of the statements made in the book. Those matters and the weight they are to be given have to be determined in proper proceedings provided by law. This court has neither the authority nor the means of making such determination, nor can this court remand this case to the trial court for a hearing when no pleadings have been filed defining the issues to be raised.

The defendant's motion to supplement the record falls outside the ambit of Rule 329, and the book is not admissible under the doctrine of judicial notice. Therefore, defendant's motion to supplement the record is denied.

Even though the contents of the book cannot be considered in this case, we still must resolve the issue as to whether the fact that the prosecutor thought about writing a book about the trial he was prosecuting and any discussion he had regarding those thoughts during the trial constitute a per se violation of defendant's right to a fair trial. We do not think that thoughts that may cross a prosecutor's mind or discussions about such thoughts, without some showing that the defendant suffered harm, are sufficient to grant a new trial. Simply because a prosecutor, judge, or defense attorney may consider profiting from their involvement in a highly publicized trial does not necessarily mean that the prosecutor, judge, or defense attorney has engaged in conduct that violates the Code of Professional Responsibility. (134 Ill.2d R. 1.1 et seq.) In addition, State's Attorney Haine stated that he was involved in all phases of defendant's trial, and he was unaware of a book in the offing. We could not find anything in the record to indicate that the trial prosecutor or the State's Attorney conducted themselves during the trial in a manner calculated to prejudice the defendant's right to a fair and impartial trial deriving from the prosecutor's contemplation of writing a book.

We now present the facts in this long trial. There were, in essence, two murder trials within this trial. Defendant was charged with the murder of her six-week-old daughter, Heather. The facts surrounding the death of Heather, in April 1989, were so similar to facts surrounding the death of defendant's infant daughter, Loralei, in June 1986, that the trial judge allowed the State to present the evidence surrounding the death of Loralei in order to show defendant's modus operandi, intent, knowledge, lack of accident or mistake, and her identity in the death of Heather. The State proceeded chronologically in its presentation of the evidence, with the facts surrounding Loralei's death being presented first and then the facts of the victim's death. Since defendant is only charged with the murder of Heather, we shall reverse the order of discussion and show the facts surrounding the death of Heather before regressing in time to Loralei's death.

Defendant's initial version...