People v. Cain

2021 IL App (1st) 191921

195 N.E.3d 368

457 Ill.Dec. 454

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Arthur CAIN, Defendant-Appellant.

No. 1-19-1921

Appellate Court of Illinois, First District, First Division.

Opinion Filed December 13, 2021

James E. Chadd, Douglas R. Hoff, and David T. Harris, of State Appellate Defender's Office (Leah Plachinski, Sarah Free, and Emma Costello, law students), of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Noah Montague, Assistant State's Attorneys, of counsel), for the People.

JUSTICE WALKER delivered the judgment of the court, with opinion.

¶ 1 A jury found Arthur Cain guilty of murder and concealment of a homicidal death. On appeal, Cain contests the sufficiency of the evidence and argues that the trial court committed reversible error by (1) denying his motion to suppress statements, (2) failing to admonish the venire in accord with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), and (3) overruling his objections to the prosecutor's closing argument. We hold that the State failed to overcome the presumption of inadmissibility for the statements police did not electronically record and that the trial court violated Rule 431(b). Because the medical examiner could not establish the cause of death with medical certainty, we find the evidence closely balanced. Accordingly, we find the trial court's errors require reversal and remand for a new trial.

¶ 2 I. BACKGROUND

¶ 3 On December 26, 2015, at approximately 9 a.m., Tiffany Mitchell saw a man rolling a red suitcase on the sidewalk past her house. The next day her son told her that police found a red suitcase containing a woman's corpse in a nearby alley. Mitchell went to the scene and told police about the man she had seen on December 26. Two weeks later, on January 8, 2016, while Mitchell rode on a city bus, she again saw the man she had seen rolling the red suitcase. She exited the bus and flagged down a police officer. Mitchell pointed to Cain as the man who was rolling the red suitcase. The officer took Cain to the police station for questioning. Police made no video recording as they questioned Cain. Prosecutors charged Cain with first degree murder and concealment of a homicidal death.

¶ 4 Cain moved to suppress the statements he made to police. Detective James Braun testified that Dr. Stephanie Powers, who performed the autopsy on Dominique Ferguson, the body in the red suitcase, had not drawn any conclusion about whether the death resulted from homicide before Braun questioned Cain. Braun said he reminded Cain of his Miranda rights (see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ), and Cain agreed to speak with him. The court stated:

"I don't believe, listening to the detective and his manner of investigating this case, that [Braun] was purposely trying to avoid putting this person, Mr. Cain, the petitioner, in a room that had taping equipment just to manipulate the law and to slip something by or to find some loophole."

The court made no finding regarding the voluntariness of the statement but held that the failure to record the statement did not render it inadmissible.

¶ 5 During voir dire , the court told the venire that Cain had a right not to testify and asked the venire members whether they understood and accepted that principle, but the court never told the venire that they could not consider Cain's decision not to testify as a reason for finding him guilty. Cain's attorney did not object to the court's questions.

¶ 6 Tonya Ferguson, Dominique's mother, testified that Dominique never used drugs. On Christmas morning 2015, Dominique's phone rang repeatedly, and Dominique went out around noon. When she did not return, Tonya thought Dominique must have met up with her boyfriend, Shawn. Lavonda Blair, a friend of Dominique, testified that she checked a phone Dominique sometimes used. Cain had left a voicemail message on the phone. In an angry voice, Cain had said, "if you don't call me or if I don't see you, don't ever call me again."

¶ 7 Braun testified that at the police station on January 8, 2016, Cain said he wanted to have children with Dominique. Dominique was at his home on Christmas Day 2015, and they had sex. Cain got up, leaving Dominique in the bed. A few hours later Cain noticed that Dominique was not moving. He checked her and found no signs of life. He panicked. After a sleepless night he decided to buy a suitcase and use it to dispose of her body. Cain said Dominique did not use drugs.

¶ 8 Donna Papsun, a toxicologist, testified that she tested Dominique's blood for "about 250 routine recreational and therapeutic drugs as well as alcohol." She found no indication of drug use. She admitted that changed protocols expanded the list of drugs for which to test. The test performed on Dominique's blood would not have shown whether Dominique used some forms of "fentanyl and some additional novel opioids." Papsun admitted that toxicologists always need to develop new tests for the latest drugs: "we're trying to develop toxicology testing for whatever is emerging and developing that testing honestly can take months so we're constantly playing this catch-up game with these emerging substances." She said a foam cone, "frothy spit emitting from the mouth or the nose," can occur in opioid overdoses.

¶ 9 Dr. Powers testified that the autopsy of Dominique showed no signs of disease or injury. She found a small foam cone, but she said that in this case the small amount of foam probably exuded from Dominique's nose in the process of decomposition in the suitcase. Opioid overdoses usually result in larger foam cones, and foam cones can result in several ways unrelated to drug use. Powers testified that most overdose deaths involving fentanyl also involved more common drugs, like heroin and cocaine, for which the toxicologist tested Dominique's blood. Dominique's corpse had petechiae, "which are small hemorrhages that are caused when you have an increase in blood pressure." Powers said, "petechiae are often seen in cases where you have some sort of compressional asphyxia component to a death." She concluded that Dominique died due to "[h]omicide by unspecified means favor asphyxia."

¶ 10 On cross-examination, Powers clarified her findings in the following exchange:

"Q. [Y]ou can't tell us with any certainty what killed Dominique Ferguson?

A. No.

Q. You can't tell us with any certainty that Dominique Ferguson was even killed?

A. I guess.

Q. How is that?

A. So as I explained before, homicide by unspecified means is essentially a diagnosis of exclusion. We have no reason for her to be dead by natural disease processes which include infectious processes or toxicologic means. So that essentially excludes a natural death or a suicidal death or an accidental death by perhaps a toxic injection. And given the circumstances of her being found in a suitcase naked placed in an alley, medicine is not performed in a vacuum. So, we look at all of the findings of our ancillary studies and the scene investigation to help us come to a cause and manner of death. And I believe in this case that homicide by unspecified means favor asphyxia and manner homicide is the best way to have certified this case."

¶ 11 Powers admitted that petechiae can result from a number of common occurrences, like sneezing or coughing, and can persist for some time. Powers found no damage to Dominique's face and no perioral trauma, although such damage may occur in suffocation.

¶ 12 The prosecutor argued in closing, "[Dominique] left her mother, her grandmother, her aunt's, her cousin's, and most importantly her little baby daughter." The court overruled Cain's prompt objection. Cain did not object to two further mentions of Dominique's child. The court overruled Cain's prompt objection to the prosecutor's argument, "you heard the doctor testify about her opinion that in this case there was no uncertainty as to one thing. She died at the hands of another person." The prosecutor later said, without objection, "[Dominique] is not alone. Today she has the 12 of you. And although nothing that any of you can do alone or collectively will ever bring Dominique back, you can make sure she didn't die in vain."

¶ 13 The jury found Cain guilty of first degree murder and concealment of a homicidal death. The court sentenced Cain to life in prison. Cain now appeals.

¶ 14 II. ANALYSIS

¶ 15 On appeal Cain argues (1) the court should have suppressed all of Cain's statements to police, (2) the court committed plain error in voir dire , (3) the prosecutor's closing argument deprived Cain of a fair trial, and (4) the evidence does not show that any crime caused Dominique's death.

¶ 16 A. Motion to Suppress

¶ 17 Section 103-2.1(b) of the Code of Criminal Procedure of 1963 (Code) provides:

"An oral, written, or sign language statement of an accused made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissible as evidence against the accused in any criminal proceeding brought under Section 9-1, *** unless:

(1) an electronic recording is made of the custodial interrogation; and

(2) the recording is substantially accurate and not intentionally altered." 725 ILCS 5/103-2.1(b) (West 2018).

¶ 18 The State admits police had Cain in custody on January 8, 2016, when they questioned him about Dominique's death. Braun's claim that he did not regard Cain as a murder suspect at the time of the questioning has no bearing on the applicability of the statute. People v. Little , 2016 IL App (3d) 140124, ¶¶ 47-48, 402 Ill.Dec. 249, 51 N.E.3d 1001. The statute makes any statement presumptively inadmissible if "the declarant [is] facing murder charges as part of a criminal proceeding when the State seeks to introduce the declarant's self-incriminating statements as evidence against the declarant." (Emphasis omitted.) Little , 2016 IL App ...