People v. Rush

                               NO. 5-96-0430

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,   )  Appeal from the 
                                       )  Circuit Court of 
     Plaintiff-Appellee,               )  White County.
                                       )  
v.                                     )  No. 95-CF-151
                                       )
STEPHANIE RUSH,                        )  Honorable
                                       )  Thomas H. Sutton, 
     Defendant-Appellant.              )  Judge, presiding.  
_________________________________________________________________

     JUSTICE RARICK delivered the opinion of the court:
     Defendant, Stephanie Rush, was convicted after a jury trial in
the circuit court of White County of first-degree murder and
concealment of homicidal death.  She was sentenced to 30 years'
imprisonment for the murder and four years' imprisonment for the
concealment, to run concurrently.  Defendant appeals, contending
the State failed to prove her guilty of either crime beyond a
reasonable doubt.  She also asserts that she was denied the
effective assistance of trial counsel, that prejudice stemming from
the prosecutor's improper closing argument justifies a new trial,
and that the court's failure to grant her motion for a new trial
constituted an abuse of discretion.  We affirm.
     In brief, the victim, the fiancée of defendant's nephew, was
last seen alive on January 29, 1995.  According to the evidence,
defendant and the victim spent the afternoon of January 29
together, shopping at various stores and eating lunch.  Defendant
claimed she dropped the victim off near the victim's apartment at
approximately 6 p.m. and went home to a Super Bowl party at her own
apartment.  When the victim did not return, her fiancé and
defendant's nephew, Eric, began making phone calls to locate her. 
He called defendant's apartment but never got an answer, apparently
because the phone was not working.  At approximately 1 a.m., Eric
went to defendant's apartment.  Defendant told him not to worry,
that the victim probably went to stay with relatives.  Eric
returned a half-hour later, asking for money to buy cigarettes. 
Defendant informed him that the victim had bought him some that day
and they were still in her truck.  She claimed that the victim and
Eric were to come over to her place to join the party after the
victim went home to freshen up and that the victim would pick up
her purchases at that time.  By the next morning, the victim's
family began searching for her.  The victim's purse was found
approximately 40 yards from her apartment, on the route defendant
claimed that the victim took after being dropped off.  No other
evidence of the victim's whereabouts surfaced until defendant's
boyfriend found the victim's body on April 1, 1995, in a storage
locker defendant rented.  The victim had been shot in the back of
the head and had died where she was found.  No physical evidence
connected defendant to the murder or concealment, but there was
sufficient circumstantial evidence pointing to defendant to enable
a jury to conclude she was guilty.
     Defendant initially contends on appeal that her convictions
for murder and concealment of a homicidal death must be reversed
because she was not proved guilty of either crime beyond a
reasonable doubt.  We disagree.
     When a challenge to the sufficiency of the evidence is
presented on appeal, it is not the function of the reviewing court
to retry a defendant.  People v. Banks, 161 Ill. 2d 119, 135, 641 N.E.2d 331, 339 (1994).  The relevant inquiry is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.  People
v. Moore, 171 Ill. 2d 74, 95, 662 N.E.2d 1215, 1224 (1996);  People
v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985).  This
standard applies to the appeals of all criminal convictions,
regardless of whether the nature of the evidence presented is
circumstantial or direct.  People v. Pintos, 133 Ill. 2d 286, 291,
549 N.E.2d 344, 346 (1989); People v. Turner, 282 Ill. App. 3d 770,
777, 668 N.E.2d 1058, 1063 (1996), aff'd on other grounds sub nom.
People v. Reed, Nos. 81422, 81683 cons. (September 25, 1997).  The
State is not required to exclude every reasonable hypothesis of
innocence (Pintos, 133 Ill. 2d  at 291, 549 N.E.2d at 346), and the
jury need not be satisfied beyond a reasonable doubt of each link
in the chain of circumstances (People v. Campbell, 146 Ill. 2d 363,
380, 586 N.E.2d 1261, 1268 (1992)).  It is sufficient if all the
evidence, taken together, satisfies the jury beyond a reasonable
doubt of the accused's guilt.  Campbell, 146 Ill. 2d  at 380, 586 N.E.2d  at 1268; People v. Davis, 278 Ill. App. 3d 532, 539, 663 N.E.2d 39, 44 (1996).  Proof of guilt beyond a reasonable doubt
does not require proof beyond any possibility of a doubt.  People
v. Franklin, 130 Ill. App. 3d 514, 519, 474 N.E.2d 776, 780 (1985). 
Moveover, when the determination of a defendant's guilt or
innocence depends upon the credibility of the witnesses and the
weight to be given their testimony, it is for the trier of fact to
resolve any conflicts in the evidence.  People v. White, 209 Ill.
App. 3d 844, 868, 567 N.E.2d 1368, 1382 (1991).  We, as a reviewing
court, are not to substitute our judgment.  People v. Robinson, 213
Ill. App. 3d 1021, 1025, 572 N.E.2d 1254, 1257 (1991).  Although
defendant has pointed out weaknesses in the State's proof, we
cannot say that such efforts created a reasonable doubt of guilt. 
At best, defendant has raised questions of fact and credibility
properly left for resolution by the jury.  We conclude that the
evidence is sufficient for a rational trier of fact to have found
the elements of first-degree murder and concealment of a homicidal
death beyond a reasonable doubt.
     A person commits first-degree murder when, without lawful
justification and with the intent to kill, he or she performs the
acts that cause the death of another.  See Turner, 282 Ill. App. 3d
at 777, 668 N.E.2d  at 1063.  A person commits concealment of a
homicidal death when he or she conceals the death of any other
person with knowledge that the person died by homicidal means.  See
People v. Cole, 253 Ill. App. 3d 603, 611, 625 N.E.2d 816, 822
(1993); Franklin, 130 Ill. App. 3d at 519, 474 N.E.2d  at 780.  The
evidence was sufficient for the jury to determine that defendant
intentionally killed the victim by shooting her in the back of the
head and leaving her body in defendant's storage locker for more
than two months, while impeding others from entering the locker.  
     The evidence reveals that defendant was the last person to see
the victim alive.  On the day she disappeared, the victim and
defendant spent the afternoon together, shopping and eating lunch. 
Once her body was found, it was determined that the victim had been
shot and killed in the defendant's storage locker. The
decomposition of the body established that the victim had been dead
for a lengthy period of time.  The lock to the locker showed no
evidence of tampering, and defendant had the only set of keys. 
Days before her disappearance defendant had told the victim she
would give her some wall hangings for her new apartment.  The wall
hangings were in the storage locker directly in front of the spot
where the victim's body was found, and a footwear impression
matching the victim's shoes was found on a chair in front of the
victim's body.  A reasonable finder of fact could have inferred
that defendant got the victim to the locker with the promise of
giving her the wall hangings and while she was inspecting them with
her back to defendant, defendant shot and killed her.  Other
evidence revealed that the victim was shot with a .22-caliber gun. 
Defendant had access to such a gun prior to its allegedly
disappearing in a burglary a couple of weeks before the murder of
the victim.  The gun was not listed as missing in the burglary
report made to the police at the time of the incident.  Defendant's
boyfriend found a .22-caliber bullet in the driver's side door
pocket of the truck defendant drove on the day the victim
disappeared.  When he showed it to defendant, she threw it away. 
The receipts from shopping reveal that defendant had sufficient
time to drive to her storage locker, shoot the victim, and return
home between 6 and 7 p.m.  Defendant's actions upon returning to
her apartment also suggest she had been involved in the victim's
death.  Immediately upon entering the apartment, defendant changed
her clothes and left again to purchase bleach and dye.  Once she
returned, she began doing laundry, even though there was an ongoing
party in her apartment.  A rational trier of fact could have
concluded that defendant changed her clothes when she first arrived
back at the apartment because they contained blood spatterings. 
She then washed and bleached or dyed her clothes to remove evidence
of blood.  Additionally, defendant never adequately explained why
she did not drive the victim home or why the victim, who was not
one to be without her cigarettes, left her cigarettes, lighter, and
food in defendant's truck.  Defendant showed no concern for the
victim's disappearance when her fiancé contacted her at 1 a.m. and
she did nothing to help him find her.  In fact, when the fiancé
later suggested that defendant check her storage locker, she
refused.  Within a month prior to the discovery of the victim's
body, defendant's sister asked to get in the storage locker to
retrieve a table and chairs she had stored there in order to sell
them.  Defendant claimed that the key to the locker was missing,
and she offered to purchase the items herself.  Days before the
discovery of the body, defendant's boyfriend asked for the storage
key to retrieve aluminum cans.  Defendant again reported that the
key was missing.  The next day, however, she obtained an extra key
from work, went to the locker, removed the cans, and gave them to
her boyfriend.  He thought the matter unusual and believed that
defendant must be hiding something in the locker.  The next day, he
took defendant's key, drove out to the locker expecting to find
evidence of defendant having an affair, and found the victim's
body.  A reasonable fact finder could have determined that
defendant knew that the body was in the locker and was keeping
others away to prevent its discovery.  While defendant claimed she
did not see the victim's body in the locker when she entered to
retrieve the cans, investigating officers testified that one only
needed to enter the locker about two feet to see the body.
     Other evidence revealed that defendant did not like the victim
and probably killed her because she was angry the victim had
possession of jewelry that had been stolen from defendant's
apartment a couple of weeks prior to the victim's disappearance. 
Defendant was extremely angry her jewelry had been taken and
confided in others that she believed that her nephew, the victim's
fiancé, had committed the burglary.  Days before her disappearance,
the victim told her grandmother she had found some of defendant's
jewelry in her apartment and was afraid to return it to defendant
because she thought defendant would believe she had stolen it. 
According to defendant, during their shopping trip together the
victim either told her about the jewelry or returned it.
     Shortly after the victim's disappearance, defendant suggested
several possible suspects and scenarios as to the victim's
disappearance.  After the victim's body was discovered, defendant
remarked to a fellow employee she was sure she was going to prison. 
And about the time she believed she would be indicted for murder,
defendant became pregnant and bragged to other employees she could
see herself "waddling into court pregnant and the jury thinking she
couldn't have killed anybody."  Other evidence suggested that
defendant believed she could get away with murder.  She read
numerous books about murder and discussed with fellow employees
ways to commit the perfect crime and dispose of a body.  
     All of the evidence taken together is more than sufficient to
satisfy a jury beyond a reasonable doubt of defendant's guilt. 
Accordingly, we will not disturb the jury's verdict.
     Defendant next contends that the prosecutor misstated
evidence, argued facts not in evidence, and made inflammatory
remarks during closing argument, all of which prejudiced her to the
extent she is entitled to a new trial.  We initially note that
defendant failed to object to the allegedly improper comments at
trial or raise them in any posttrial motion, thereby waiving any
possible error.  People v. Camden, 219 Ill. App. 3d 124, 139, 578 N.E.2d 1211, 1222 (1991); People v. Walton, 199 Ill. App. 3d 341,
345-46, 556 N.E.2d 892, 895 (1990).  Moreover, improper closing
argument does not constitute plain error unless the error is so
flagrant as to threaten the deterioration of the judicial process
or so prejudicial as to deprive defendant of a fair trial.  People
v. Lucas, 132 Ill. 2d 399, 435, 548 N.E.2d 1003, 1017 (1989); 
People v. Williams, 249 Ill. App. 3d 102, 103, 619 N.E.2d 233, 234
(1993).  We cannot say that any of the complained-of remarks
reached the level of depriving defendant of a fundamentally fair
trial.  
     When a court reviews allegations of prosecutorial misconduct,
the closing arguments of both the State and the defendant must be
examined in their entirety and the comments complained of must be
placed in their proper context.  People v. Cisewski, 118 Ill. 2d 163, 175-76, 514 N.E.2d 970, 976 (1987).  It must also be
remembered that prosecutors are afforded wide latitude in closing
argument.  People v. Williams, 147 Ill. 2d 173, 231, 588 N.E.2d 983, 1005 (1991).  Additionally, the prosecutor has a right to
comment upon the evidence presented and make any reasonable
inferences arising therefrom, even if those inferences are
unfavorable to defendant.  People v. Hoffstetter, 203 Ill. App. 3d
755, 778, 560 N.E.2d 1349, 1364 (1990).  And if the trial court
instructs the jury that closing arguments are not evidence, any
error resulting from the prosecutor's remarks is considered cured. 
Camden, 219 Ill. App. 3d at 141, 578 N.E.2d  at 1223.
     Several of the comments about which defendant complains were
not misstatements of the evidence, as defendant contends, but
rather constituted reasonable inferences from the evidence.  For
example, the pathologist testified the victim died two to four
hours after eating a meal consisting of salad-type material. 
Defendant testified she and the victim ate salad at the Olive
Garden Restaurant at about 3 p.m.  The victim was last seen alive
at 6 p.m.  The prosecutor legitimately made the reasonable
inference that the contents of the victim's stomach resulted from
having eaten at the Olive Garden Restaurant with defendant on the
day she disappeared.  Defendant was free to argue that her meal
with the victim at Olive Garden was not necessarily the victim's
last meal, just as the prosecutor was free to argue that it was.
     As for the alleged statements which defendant contends were
made solely to arouse the passions of the jury, we agree with the
State that the remarks to which defendant refers were instead
proper comments upon the evidence.  Specifically, defendant finds
fault with the references to her books and obsession with murder as
a possible motive for killing the victim.  Evidence which tends to
establish that the accused had a motive for killing the victim is
relevant, and if the evidence, at least to a slight degree, tends
to establish the motive relied on, it is also competent.  Lucas,
132 Ill. 2d  at 427, 548 N.E.2d  at 1014.  The evidence revealed that
defendant possessed and read numerous books involving murder.  She
discussed the topic with fellow employees and solicited their ideas
about how to commit the "perfect" murder.  She even bragged she
would know how to murder someone if she ever did it.  It was not
unreasonable for the prosecutor to legitimately infer that
defendant was obsessed with murder, and with her general dislike of
the victim, her extreme anger that someone stole her jewelry, and
her learning that the victim had possession of some of the stolen
jewelry, this evidence constituted an acceptable theory as to why
defendant murdered the victim.  
     After reviewing all of defendant's contentions, we conclude
that the prosecutor's closing argument was based on the evidence
and reasonable inferences therefrom and therefore was proper.  And
any misstatements of the evidence were cured by the trial court's
instructions to the jury that closing arguments are not evidence. 
Accordingly, we find no reversible error.
     Defendant next complains her trial counsel was ineffective to
the point that her convictions must be reversed and new counsel
must be appointed.  We conclude that defendant has failed to meet
her burden of establishing ineffective assistance.
     To establish the ineffective assistance of counsel, a
defendant must show that her attorney's representation fell below
an objective standard of reasonableness and that her counsel's
shortcomings were so serious as to deprive her of a fair trial. 
People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255
(1984); People v. Anderson, 234 Ill. App. 3d 899, 911, 601 N.E.2d 831, 839 (1992).  To establish actual prejudice, the defendant must
show that, but for counsel's unprofessional errors, there is a
reasonable probability that the result of the proceedings would
have been different.  Robinson, 213 Ill. App. 3d at 1026, 572 N.E.2d  at 1257.  A reviewing court is to examine the totality of
the evidence presented (Anderson, 234 Ill. App. 3d at 911, 601
N.E.2d at 839), applying a heavy measure of deference to counsel's
judgment (People v. Orange, 168 Ill. 2d 138, 149, 659 N.E.2d 935,
940 (1995)), and not judge counsel's performance based on hindsight
(People v. Whittaker, 199 Ill. App. 3d 621, 627, 557 N.E.2d 468,
471 (1990); People v. Jenkins, 190 Ill. App. 3d 115, 139, 545 N.E.2d 986, 1002 (1989)).  If we can dispose of the claim of
ineffective assistance on the ground that defendant has failed to
demonstrate sufficient prejudice, we need not determine whether
counsel's performance was deficient.  Albanese, 104 Ill. 2d  at 527,
473 N.E.2d  at 1256. 
     Defendant's first allegation of ineffective assistance of
counsel concerns the failure to discover and investigate Debra
Brown as a witness.  Brown claimed to have seen defendant and the
victim outside defendant's apartment at 6 p.m. the night the victim
disappeared.  Defendant believes that Brown's testimony supports
her version that she let the victim out of her truck near her
apartment at the end of their shopping trip.  Whether a failure to
investigate and present evidence is incompetent depends upon the
value of the evidence.  Counsel's failure to present irrelevant
evidence is not incompetence.  People v. Pope, 284 Ill. App. 3d
330, 335, 672 N.E.2d 65, 68 (1996).  The record reveals that
defense counsel knew nothing about Brown's existence prior to
trial.  Brown contacted defendant after her conviction to tell her
what she saw.  Looking at the circumstances known to counsel at the
time of their investigation, there is no basis for concluding that
counsel failed to conduct a proper investigation.  See Orange, 168 Ill. 2d  at 150, 659 N.E.2d  at 941.  Moreover, to prevail on a claim
of ineffective assistance of counsel based on a failure to
investigate, defendant must show that substantial prejudice
resulted and that there is a reasonable probability the final
result would have been different had counsel properly investigated. 
168 Ill. 2d  at 151, 659 N.E.2d  at 941.  Even had counsel's
investigation uncovered Brown's information, there is no reasonable
probability her testimony would have changed the result of the
trial in this instance.  Brown's testimony in fact conflicted with
defendant's version of what happened.  Defendant's version was that
she and the victim were alone in a truck and not with a third woman
in a car, as Brown claimed.  Defendant never mentioned the
existence of a blue car that acted suspiciously in front of them,
as Brown claimed.  Brown's information therefore had little
relevance and had little probability of changing the result of the
trial.
     Defendant next argues defense counsel failed to argue to the
jury that the State had not proved the time of the victim's death. 
The time of death is not an element of either offense.  Moreover,
evidence that the victim died shortly after returning from shopping
was strong.  To suggest that the victim died on a later day within
two to four hours after eating another salad would have strained
credulity.  Counsel cannot be considered ineffective for refraining
from advancing such an argument.
     Defendant further finds fault with defense counsel's failure
to object to the prosecutor's improper closing argument.  As
already discussed, the remarks now contended to be improper were
based on the evidence or were proper inferences from the evidence,
and any misstatements were cured by the trial court's instructions
to the jury.  Counsel's failure to object, therefore, does not
constitute ineffective assistance.  Defense counsel ably
represented defendant throughout the trial proceedings as a whole. 
Defendant has not met her burden of proving that counsel's
representation fell below an objective standard of reasonableness
or that, absent counsel's errors, the result of the trial would
have been different.
     Defendant's final point on appeal again involves the
information learned from Brown.  Defendant asserts that the court
erred in denying her motion for a new trial based on newly
discovered evidence, namely, the information possessed by Brown. 
Defendant also claims that the newly discovered evidence was
exculpatory evidence which the State failed to disclose in
discovery.  We find that the trial court properly exercised its
discretion in denying the motion.
     To warrant a new trial, newly discovered evidence must be so
conclusive that it will probably change the result on retrial, it
must be material to the issue and not merely cumulative, it must
have been discovered after trial, and it must not have been
discoverable prior to trial through the exercise of due diligence. 
People v. Woodrome, 237 Ill. App. 3d 220, 234, 604 N.E.2d 486, 496
(1992); People v. Haun, 221 Ill. App 3d 164, 175, 581 N.E.2d 864,
872 (1991).  Motions for a new trial based on newly discovered
evidence are not favored and are subjected to the closest scrutiny. 
People v. Waldroud, 163 Ill. App. 3d 316, 319, 516 N.E.2d 623, 625
(1987).  The decision whether to grant a new trial based on newly
discovered evidence rests within the discretion of the trial court
and will not be disturbed on appeal absent a showing of a manifest
abuse of that discretion.  Haun, 221 Ill. App. 3d at 175, 581 N.E.2d  at 872.  As for the failure to disclose, the State's duty is
limited to evidence that would negate the defendant's guilt,
determined retrospectively by examining whether there is a
reasonable probability that the result of the trial would have been
different.  See People v. Carlson, 224 Ill. App. 3d 1034, 1042, 586 N.E.2d 1368, 1374 (1992).  We cannot say that there is a reasonable
probability that the result of the trial would have been different
had the State disclosed the evidence or had defendant discovered it
prior to trial.  Brown's information was neither conclusive nor
material to the issues.
     At the hearing on the posttrial motion, Brown testified she
saw defendant and the victim exiting a car near defendant's
apartment about 6 p.m. on January 29, 1995.  (In her initial
statement to the police, Brown reported she saw three females. 
Later she reported only seeing two.)  As Brown passed the girls, a
man driving a blue hatchback-type car recklessly pulled out of an
alley in front of Brown, made a U-turn in the intersection, and
stopped facing the girls.  After driving on to two other places,
Brown saw the same man in the same car at a bridge near her home. 
The court determined that Brown's testimony was not credible. 
Moreover, Brown's testimony was irrelevant, having little tendency
to negate defendant's guilt.  Defendant was with only one other
female, the victim.  They went shopping in defendant's truck. 
Defendant never mentioned in her statements to the police the
presence of a blue hatchback, even though she tried to cast
suspicion on several other people.  The police investigation of the
owner of the blue hatchback established that he had a good alibi
for his whereabouts at 6 p.m. on January 29, 1995.  Brown also
testified she noticed a turquoise-and-silver bracelet on the left
arm of the victim, yet the victim's sister testified the victim
owned no such bracelet and usually did not wear bracelets at all. 
Brown also claimed she purchased food from a nearby restaurant
after seeing the blue car.  One of the owners of the restaurant
testified that the establishment was not open at the time Brown
allegedly stopped.  Moreover, Brown's testimony at the posttrial
hearing differed materially from her pretrial statements.  Given
all of the contradictions, Brown's information was not so
conclusive that it would probably change the result on retrial. 
Accordingly, we find no error in the denial of defendant's motion
for new trial.
     For the aforementioned reasons, we affirm defendant's
convictions.

     Affirmed.  

     KUEHN and HOPKINS, JJ., concur.