People v. Waldron

• Decision Date: 07 October 1991
• Docket Number: No. 2-89-0794,2-89-0794
• Citation: 219 Ill.App.3d 1017,580 N.E.2d 549,162 Ill.Dec. 586
• Parties: , 162 Ill.Dec. 586 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John WALDRON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 549

580 N.E.2d 549

219 Ill.App.3d 1017, 162 Ill.Dec. 586

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John WALDRON, Defendant-Appellant.

No. 2-89-0794.

Appellate Court of Illinois Second District.

Oct. 7, 1991.

G. Joseph Weller, Deputy Defender, Manuel S. Serritos, Thomas A. Lilien, Asst. Defender, argued, Office of State Appellate Defender, Elgin, for John Waldron.

Fred L. Foreman, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, Lawrence M. Bauer, State's Attys. Appellate Prosecutors, Elgin, for the People.

Justice BOWMAN delivered the opinion of the court:

The defendant in the instant case, John Waldron, along with codefendants, Bryan Smith and Paul Eshom, was charged by indictment in connection with the murder of Thomas Goings. The indictment contained additional charges stemming from the incident, which occurred on September 6, 1988, at a Speedway gas station in Wheeling, Illinois, for a total of five counts. Count I of the indictment charged felony murder predicated upon armed robbery (Ill.Rev.Stat.1987, ch. 38, par. 9-1(a)(3)); count II charged intentional murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1(a)(1)); count III charged knowing murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1(a)(2)); count IV charged the armed robbery of Thomas Goings (Ill.Rev.Stat.1987, ch. 38, par. 18-2(a)); and count V charged the armed robbery of Thomas Hixon (Ill.Rev.Stat.1987, ch. 38, par. 18-2(a)). The defendant and Smith were also separately charged with three counts of armed robbery in case No. 88-CF-1511.

Smith and Eshom both pleaded guilty prior to defendant's trial. At the conclusion of defendant's trial, the jury returned verdicts of guilty on all five counts. After the jury decided not to impose the death penalty, the trial judge sentenced defendant to a term of natural-life imprisonment for murder, a concurrent term of 60 years' imprisonment for one count of armed robbery, and a consecutive term of 60 years' imprisonment for the second count of armed robbery. Defendant's post-trial motion for a new trial was denied, and defendant filed a timely notice of appeal.

On appeal, defendant presents the following issues for our review: (1) whether the trial court improperly admitted evidence of a separate armed robbery; (2) whether the trial court erroneously admitted into evidence a video tape without an adequate foundation; (3) whether the trial court improperly allowed the jury to consider the testimony of an incompetent witness; (4) whether the State unfairly bolstered the testimony of an accomplice witness; (5) whether two of the three judgments of conviction of first-degree murder must be vacated and whether any of the convictions of armed robbery must be vacated; (6) whether defendant should be granted a new sentencing hearing for first-degree murder and whether the sentence of natural-life imprisonment was proper; and (7) whether the consecutive 60-year extended-term sentence for armed robbery should be made concurrent with that for murder and reduced to 30 years.

Among the State's witnesses at trial were Thomas Hixon and Steve Fuessle. Hixon was the manager of the Speedway gas station on September 6, 1988, while Fuessle and Thomas Goings, the victim, were employees. All three men were at work by 6 a.m. on that date. While Hixon was behind a counter in the middle of the store he saw two men walk down the center aisle by the cigarette rack. One man wore dark pants and a dark sweatshirt with the hood over his head, and the other wore dark pants, a dark jacket, and a camouflage-pattern hat. The two men proceeded to the cash register at the west side of the store, with the man wearing the hooded sweatshirt in the lead. Each man held a gun. The man in the hooded sweatshirt lifted a long-barrelled revolver and pointed it at Goings, who was at the register. When the gun was one foot from Goings, the man demanded all the money. As Goings started to approach the register the man thrust the gun out and fired. Goings then fell to the ground behind the counter.

The man in the hooded sweatshirt then motioned Hixon, who was approximately 15 to 20 feet away, to the register and again demanded the money in a calm voice. Hixon gave him all the bills from the west register. The man in the sweatshirt said, "I know there's more." Hixon replied that there was not and offered the coin tray. The man said, "There's nothing I can do with that. I want the stuff that's under the counter." Hixon denied that there was any more money at that register and then proceeded to give the man the bills from the other register. In the meantime, Steve Fuessle, who had heard the shot while in a back-room freezer, came out to the kitchen area in the front of the store. The man in the camouflage hat then pointed a small pistol at Fuessle and ordered him to the floor in a nervous voice. After receiving the money from the second register, the man in the hooded sweatshirt again said that there was more money under the counter. Hixon denied that there was, and the two men then ran out of the store. A total of $225 had been taken.

After the two men had left, Hixon went to his office and called the police. He also switched one of the three surveillance cameras in the store to the register area and put the picture on a monitor. The monitor had been showing a picture from a camera trained on the cigarette aisle. From the video tape, Hixon identified his location at the time of the shooting and pointed out where the two offenders were shown. Hixon could not identify the shooter's face and had been unable to make an identification at a subsequent lineup. Fuessle was also unable to make an identification at a subsequent lineup.

Daniel Boyd was a customer at the Speedway gas station on the morning of September 6. While Boyd was filling his car at the north pump nearest to the building, a beige van was located at the south end of the service area. There was a driver inside and the motor was running. As Boyd was heading for the store entrance, the two men ran out. The man in the hooded sweatshirt had his hands in the front pouch of the sweatshirt. The men then jumped into the van as it started to move. Boyd then went into the gas station.

Various police officers and paramedics arrived at the Speedway gas station minutes after the shooting occurred. Goings was deceased by that time. An autopsy performed later that day revealed that Goings had died from a gunshot wound to the center of his neck. Forensic pathologist Lawrence Blum stated that in his opinion the gun had been fired at "loose contact range" against Goings' shirt. There was some blood splattered at the entry wound. The pathologist recovered two metal fragments from the wound. A trace evidence analyst examined Goings' clothes and was of the opinion that the hole in the neck of his work smock with blackened edges was consistent with a "contact" or "near-contact" shot. An evidence technician took various photographs of the scene. The technician found a hole in the north wall of the store area behind the cash register counter and above Goings' body. A bullet jacket was recovered from the wall. In addition, there was an exit hole in the office wall behind the north wall, and a metal fragment was found in a box below the hole in the office.

Lake County Detective Rodney Brown arrived at the Speedway gas station between 7:30 and 8 a.m. He went to the office area and viewed a video tape on the store monitor. He watched the tape for the 6 to 6:45 a.m. period and then took the tape into custody. A slower-speed copy of the tape (People's exhibit No. 50) was admitted at trial and shown to the jury. Blown-up photographs of four frames on the video tape were also admitted into evidence.

Daun Milne also testified for the State. On September 5, 1988, Milne was living in an apartment in Wheeling. Paul Eshom was her roommate. During the course of that day, Milne had ingested cocaine and psilocybin mushrooms with Eshom and had taken a "Xanex [sic ]" tablet. Eshom and Milne went to Jimmy's Bar in Island Lake on the evening of September 5. There they met the defendant, whom Milne had known previously and with whom she had taken drugs. Defendant was with Bryan Smith and introduced Smith as his bodyguard.

Milne denied that she and Eshom took drugs with defendant and Smith during the night of September 5 and early morning of September 6. Milne, Eshom, Smith and defendant left Jimmy's Bar around 3 a.m. They first headed for a bar in Wheeling, but decided not to drive since they had all been drinking. The four rode in Eshom's van to Milne's apartment. There was drinking at the apartment, but Milne did not recall anyone taking cocaine, although she might have taken drugs by herself in the bathroom. Eshom went to sleep in the bedroom, but Milne and the others stayed up.

At approximately 5:30 or 6 a.m. defendant and Smith talked of going to the store for beer and cigarettes. While Milne was in the bathroom, defendant woke Eshom up. Defendant borrowed a sweatshirt from Milne, stating that it was cold outside and his jacket was thin. Defendant had been wearing a black leather jacket. Smith borrowed a black windbreaker from Milne. Smith, Eshom and the defendant then left the apartment for half an hour. While they were gone, Milne took some cocaine. When the three men returned to the apartment, the defendant was carrying a handful of money. Defendant pulled a .44 caliber gun from his pants and said, "I got the mother fucker." The three men sat down and divided the money into three piles, and Milne observed "a lot of extreme nervousness." When Milne asked defendant what gas station they had gone to, defendant replied that it was none of her business.

Later that morning, all four people went to an apartment in Rolling Meadows in Eshom's van. They obtained some cocaine and the four of them, plus the occupants of the house in Rolling Meadows, ingested it. Milne and Eshom then...