People v. Rollins

                               NO. 5-96-0411

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the
                                    )  Circuit Court of
     Plaintiff-Appellee,            )  Saline County.
                                    )
v.                                  )  No. 95-CF-157
                                    )
JAY BRYANT ROLLINS,                 )  Honorable
                                    )  Michael J. Henshaw,
     Defendant-Appellant.           )  Judge, presiding.
_________________________________________________________________

     JUSTICE KUEHN delivered the opinion of the court:
     A person who kills an individual without lawful justification
commits murder if, in performing the acts which cause death, he
either intends to kill or knows such acts create a strong
probability of death.  It follows that a person cannot murder
someone who is already dead.  But what if a person mistakenly
believes that someone is dead, possesses no intent to kill because
of that belief, and in an effort to conceal what he perceives to be
a corpse, sinking it into a strip mine lake, he actually drowns
that someone?  Defendant's appeal presents the question and asks us
to overturn his murder conviction based on the trial court's
refusal to instruct on the mistake-of-fact defense under such a
circumstance.
     The case is about the untimely death of a 46-year-old woman
named Judith Ann Crawford.  It features a series of stories
fashioned by defendant, her undisputed killer.  Defendant's
divergent stories ultimately suggest how and why Judith Ann died. 
Whether any version conveys what truly happened to her is open to
question. What is not open to question is that Judith Ann's
unnatural demise flowed quite naturally from defendant's conduct.
     A Saline County jury found defendant guilty of first-degree
murder and concealment of a homicidal death.  Defendant now serves
life imprisonment for murder and 10 years' imprisonment for
concealment of that murder.
     This case presents a singular issue drawn from the fact that
a component of Judith Ann's death was drowning.  It appears that
Judith Ann, despite the mortal wounds she sustained as the result
of a beating, held to life until defendant cast her body into the
chilly depths of an abandoned strip mine pit called the Blue Hole. 
The Blue Hole's waters were chosen by defendant to be the final and
secret resting place for Judith Ann's remains.  The pathologist who
performed the autopsy could not pinpoint whether Judith Ann's last
breath drew air or water.  We are left to wonder whether she died
during the protracted beating defendant inflicted, during her
lengthy entombment in the stale darkness of defendant's car trunk,
or in the cold waters of the Blue Hole.
     Thus, defendant asks us to overturn his murder conviction
because the trial court refused to instruct the jury about
defendant's mistaken belief that Judith Ann was dead when she was
committed to her watery grave.  Defendant lays claim to a belief
that he had already killed Judith Ann when he chained her body to
a concrete block and watched it disappear into the Blue Hole.  He
contends that the belief that he submerged a corpse constitutes a
mistake of fact that negates the necessary state of mind to kill by
the act of drowning.
     Defendant argues that absent a mistake-of-fact instruction,
there is no assurance that the jury properly decided his guilt for
the crime of murder.  He insists that the instruction was a
necessary safeguard against a decision wrongfully based on the act
of drowning.  Simply put, defendant suggests that the guilty
verdict for murder potentially rests on an act that he could not
commit with the intent to kill because it was committed against
what he believed to be a corpse.  As bizarre as all this seems,
defendant offers supreme court reasoning to support his argument.
     In People v. Crane, 145 Ill. 2d 520, 585 N.E.2d 99 (1991), our
supreme court overturned a murder conviction because the jury was
not instructed on the mistake-of-fact defense.  The claimed mistake
of fact was the belief that the victim was already dead.  Crane,
145 Ill. 2d  at 526, 585 N.E.2d  at 102.  David Crane reported to
authorities that he severely beat Robert Gahan in self-defense. 
Crane, 145 Ill. 2d  at 524, 585 N.E.2d  at 101.  Under the belief
that the beating was justified but deadly, Crane poured gasoline
over Gahan's body and set it ablaze.  Crane, 145 Ill. 2d  at 524,
585 N.E.2d  at 101.  Crane claimed that the act was not intended to
kill Gahan, because he believed that Gahan was already dead. 
Crane, 145 Ill. 2d  at 526, 585 N.E.2d  at 102.
     Our supreme court noted:
     "Since (1) defendant's whole case rested upon the concepts of
     self-defense and mistake of fact, and (2) there exists some
     evidence upon which a jury could reasonably conclude that
     defendant burned Gahan under the mistaken belief that he was
     dead, the failure to give the mistake of fact instruction to
     the jury cannot be considered harmless."  Crane, 145 Ill. 2d 
     at 528, 585 N.E.2d  at 102.
     At first blush, it appears that Crane directs a need to honor
defendant's request for a mistake-of-fact instruction.  However,
our case is different in several significant ways.  Those
differences mark a limitation on the mistake-of-fact defense in
homicide cases.
     Crane persistently claimed that he had reacted to an
unprovoked and potentially deadly assault, had severely beaten
Gahan, and had panicked when he believed him to be dead.  He
insisted that he had only burned the body because he harbored the
belief that Gahan was dead.  The State charged the beating and
burning as tandem death-producing acts, and the State's experts
were unable to conclude whether Gahan was dead or alive when he was
subjected to flame.  Crane, 145 Ill. 2d  at 526-27, 585 N.E.2d  at
102.
     Here, the State limits its charge to defendant's acts of
beating the deceased.  It undeniably proves that the primary cause
of death was head injury, with drowning being a possible
contributing factor.  Massive brain hemorrhaging, a condition
wrought by a pummelling rather than exposure to water, was the
undisputed primary cause of death.  Defendant offers nothing to
suggest that Judith Ann might have survived her head injuries had
she not been cast into the Blue Hole.
     More importantly, defendant tenders a host of divergent
statements about the death's occurrence, none of which provide an
innocent explanation for how Judith Ann came to be in a condition
he perceived as dead.  The only statement that includes defendant's
belief that he submerged a corpse is a statement that admits to a
series of acts that inflict the injuries upon which that mistaken
belief is based.  The injuries he admits inflicting are mortal head
injuries.  Crane claims to have inflicted fatal injuries in self-
defense before he mistakenly burned Gahan alive.  Defendant claims
to have inflicted fatal injuries to a defenseless woman before he
mistakenly drowned her alive.                                
     A review of the critical evidence in the case is instructive.
Authorities sought to question defendant because he and Judith Ann
left a Harrisburg, Illinois, nightclub together on the night of
Judith Ann's death.  When first interrogated, defendant readily
admits that he left the nightclub with Judith Ann.  It is the only
fact defendant supplies that is not open to question.
     Authorities had already recovered Judith Ann's body when they
began to examine defendant.  Fortunately, she had not slipped to
the bottom of the Blue Hole's murky depths as defendant had hoped. 
Her rapid discovery maintained the evidentiary value of her
remains.  The body's condition spoke a truth that betrayed
defendant's lies.  She had undeniably incurred varying and
sustained violent assaults.
     There were lacerations and contusions over the face, chest,
abdomen, back, flank, upper arms, forearms, wrists, hands, thighs,
knees, lower legs, and ankles.  The hyoid bone in the neck was
crushed, six ribs were broken, and the skull was fractured.  The
larynx, adrenal gland, kidneys, and intestines sustained internal
contusions.
     Very little of Judith Ann's anatomy was spared injury.  But
her face and head were clearly the prime target.  The pathologist
spoke of Judith Ann's "raccoon eyes."  They were severely swollen
and black.  There were two separate lacerations on the right eyelid
and three separate lacerations on the left eyebrow.  The forehead
had a large laceration that exposed the skull bone.  The right
forehead had a separate laceration.  The back of the head had three
deep lacerations associated with the skull fracture.
     The pathologist decided that the primary cause of death was
Judith Ann's head injuries.  The head trauma produced subdural and
subarachnoid hemorrhaging that produced death.  Because the lungs
evidenced pulmonary hyperinflation, drowning was a possible
component of Judith Ann's death.
     Defendant offered authorities a series of stories and
explanations for the injuries.
     At first, defendant claimed that his night with Judith Ann was
a brief encounter.  He claimed to have left her that night in good
spirit and fine health.  Upon further interrogation, he abandoned
this attempt to exculpate himself and changed his story.
     Defendant next claimed that Judith Ann took a serious fall
while riding with defendant on his motorcycle.  He claimed panic
because he was driving without a valid motorcycle operator's
license.  In order to conceal this traffic violation, he dumped
Judith Ann into the Blue Hole.
     On appeal, defendant contends that the State's admission of
this statement interjects "some evidence" that defendant's initial
conduct was innocent.  The jury could believe that Judith Ann's
injuries were accidental but further believe that the drowning was
intentional and convict based on it.  Therefore, defendant argues
that a mistake-of-fact instruction was essential.                 
     We note that this admission is inconsistent with Judith Ann's
injuries, was abandoned by defendant before the interrogation was
over, and is never reasserted as an accurate account of what
happened.  However, since it constitutes "some evidence" of
accidental rather than criminal infliction of injuries, had
defendant related a belief that the motorcycle accident injuries
were deadly, defendant's argument might have merit.  Defendant did
not relate the motorcycle accident's injuries to any belief that
Judith Ann was dead when cast into the Blue Hole.  Defendant
related such belief only later when he spoke of injuries
intentionally inflicted.      
     Upon further interrogation, defendant abandoned this attempt
to exculpate himself and changed the story.  He claimed that he
kicked Judith Ann and slammed her to the ground as the result of an
argument over sexual impotence.  He first claimed that in leaving
her, he accidently hit her with the car, but he altered this claim
during the same interrogation session.  He recanted the part about
the car striking Judith Ann and claimed that Judith Ann's head
struck the bumper during the argument.  After her head was struck,
he picked her up by the throat and put her in the car's trunk.
     Again, defendant argues that the State's admission of this
statement interjects "some evidence" that defendant's initial
conduct was innocent.  Again, defendant does not relate the
injuries inflicted in this incident to any belief that Judith Ann
was dead when cast into the Blue Hole.  In fact, he does not say
anything about the Blue Hole in this account.           
     Upon further interrogation, defendant changed his story a
final time and offered a far more detailed and inculpatory account
of what happened.
     Defendant claimed that he took Judith Ann to Andrew Wilkins'
house, where he had sexual intercourse with her.  Wilkins asked
defendant if he too could have sex with Judith Ann, and defendant
gave his permission.  Defendant explained that Judith Ann viewed
this treatment as rape.  She struck defendant with the heel of her
shoe.  Defendant retaliated by striking back.
     He drove Judith Ann to a remote area of Saline County. 
According to defendant, Judith Ann, still infuriated over her rape,
pulled a knife from her purse.  Defendant's explanation of what
followed is augmented by the fact that he claims to have trained in
the martial arts.
     Defendant disarmed Judith Ann.  After obtaining her weapon, he
stabbed her, slammed her head into the automobile hood, and threw
her to the ground.  He picked her up in order to slam her face back
into the ground.  He also kneed her in the head, kicked her in the
ribs, kicked her in the chest, and slammed her head against the
bumper.  When the beating was over, defendant threw Judith Ann into
the trunk and drove back to Wilkins' house to use the bathroom.
     After the defendant freshened up, he drove to Harrisburg to
gather a concrete block and chain.  Along the way, he stopped to
visit with Aloma Bradford for about an hour and a half.  After his
visit, he drove to the Blue Hole and opened the trunk.
     Defendant was annoyed at gurgling noises that emanated from
Judith Ann's body.  He "stomped" the body until it submitted to
silence.  The quieted body was chained to a concrete block and
rolled into the Blue Hole.  Defendant claimed that he thought
Judith Ann was dead when he disposed of her body.
     We can surely accept defendant's contention that evidence
exists upon which a jury could reasonably conclude that defendant
cast Judith Ann into the Blue Hole under the mistaken belief that
she was already dead.  Defendant certainly did everything in his
power to kill her.  Leaving nothing to chance, he silenced the
involuntary gurgling of a dying and defenseless woman with further
violent assaults before committing her to the strip mine pit.  He
no doubt could see the ghastly product of his deeds before he cast
it into the Blue Hole.
     Notwithstanding, we cannot accept the contention that
defendant is entitled to a mistake-of-fact defense under the
circumstances presented.  Defendant does not claim that his violent
assaults on a middle-aged woman were in any way justified.  Nor can
he contest that massive injuries to the brain were the primary
cause of death.  Defendant's belief does not negate his deadly
intent, even though drowning was a possible component of Judith
Ann's death.  His only mistake was a belief that he had already
achieved his murderous bent by the use of extreme and unjustified
force.  If the Blue Hole's waters aided Judith Ann's bleeding brain
to hasten her inevitable death, such fact does not negate
defendant's intent to commit murder.  The mistake-of-fact defense
does not permit exoneration upon the absurd claim that defendant's
intent was to merely bludgeon, not bludgeon and drown, his prey.
     While the mistake-of-fact defense applies to those who attempt
to destroy or conceal a body believed dead as the result of
potentially justified conduct (Crane, 145 Ill. 2d  at 526-28, 585
N.E.2d at 101-02) or to those who attempt to destroy or conceal a
body believed dead as the result of someone else's criminal
conduct, it cannot apply to those who attempt to destroy or conceal
a body believed dead as the result of their own criminal conduct. 
If an assailant inflicts unjustified wounds to the extent that he
reasonably believes he has killed someone, misapprehension of his
crime's effect does not license incineration, drowning, or
dismemberment to destroy evidence of what happened.  If a defendant
attempts to conceal his own criminality by further acts that
actually contribute to an end defendant mistakenly thinks he has
already produced, he cannot escape criminal responsibility for
murder.  We think the trial judge employed a sound and proper
course when he refrained from interjecting the mistake-of-fact
defense into this case.
     Accordingly, we affirm.

     Affirmed.

     HOPKINS, J., and MAAG, J., concur.