*1 (No. 58652. ILLINOIS,
THE PEOPLE THE STATE Appel- OF OF lee, OLINGER, v. PERRY Appellant.
Opinion April Rehearing filed 1986. 2, 1986. denied June *6 J., SIMON, dissenting. Schiedel,
Charles M. Defender, of Deputy Springfield, *7 for appellant.
Neil F. Hartigan, General, Attorney of Springfield (Jill Wine-Banks, General, Solicitor and Mark L. Rotert and Joan Fickinger, General, G. Assistant of Attorneys Chicago, of counsel), for the People.
JUSTICE MORAN delivered the the opinion of court: Defendant, a Perry Olinger, codefendant, William Duncan, were convicted a Whiteside by County jury Adams, murders of James Gordon Stevens and Deb- bie Bushman. The two were also convicted of armed rob- violence, armed bery, and conspiracy. Duncan and defendant a both for sentencing, waived jury sepa- rate before trial hearing held The court court. life Duncan to and sentenced defend prison
sentenced court, to this directly ant to death. Defendant appealed VI, Ill. art. right. 4(b). as a matter of Const. sec. Ill. Stat. ch. 1(i); See also Rev. Ill. par. 9 — R. 2d 603. 16 issues on Did the (1)
Defendant raises appeal: to into evidence exculpa- court refuse allow improperly statements when other por- of defendant’s tory portions used the State? Did by (2) tions those statements were defendant waive a conflict interest validly potential Should a mistrial attorney? (3) between himself and at- declared when the State erroneously have been witness a nonexistent to a defense tempted impeach denied due pro- statement? Was the defendant prior (4) failure to disclose certain informa- by cess State’s to for tion? it error refuse defendant’s motion Was (5) to exclude change (6) prospective of venue? Was error death Did penalty? (7) who could not vote jurors defendant’s trial the court refuse to sever improperly err in al- Did the court (8) from that his codefendant? to of mind of one of evidence as the state lowing hearsay im- (9) his murder? Did allegedly the victims to prior during prosecutors closing argu- remarks proper a fair Did the trial (10) ment defendant of trial? deprive its to to exercise discretion to allow jury court fail it error testimony? (11) of certain Was transcripts see Illinois pattern refuse the second paragraph evidence? Did the (12) instruction on circumstantial court, factors which rely in sentencing, aggravating the court (13) place improper Did an proved? were the death penalty burden on defendant prove rele- Did the court fail consider (14) does not apply? Is Illinois death penalty factors? mitigating (15) vant it re- defendant because, says, statute unconstitutional is that death inappropriate prove quires *8 claims, no as because, gives guidelines and defendant to when the prosecutor should seek death penalty? Does the (16) Illinois death statute fail to penalty narrow to a unique cognizable those group persons for the eligible death penalty? 25,
On 1982, May James Adams was found dead in his home in Falls, Rock Whiteside the victim of County, knife wounds on his neck and throat. On the same day Gordon Stevens and Debbie Bushman were found dead in their home in nearby Sterling, each shot having been once in the head. On October after a five- month investigation, codefendant, defendant and a Wil- liam Duncan, were indictment charged by three murders. The indictment also charged both with armed armed robbery, violence, and conspiracy.
Prior trial, moved change venue from Whiteside County, alleging extensive pre- trial publicity would a fair prevent trial. The motion was denied. Defendant also filed several motions for sever- ance, that he alleging and Duncan had antagonistic de- fenses. These motions were also denied.
At trial the State’s evidence disclosed that the body of James Adams was found Taber, Tina girlfriend, at about 10 a.m. on 1982. May Taber also discovered Duncan on a asleep couch several feet from Adams’ An body. autopsy showed that Adams had cut on been the face throat, and the and had been struck on the head with a blunt instrument.
At about 11:30 a.m. on the Neuman, same Susan day, a friend of Stevens and Bushman, discovered bodies of the two dead in their home. Neuman testified that she found the door ajar, Stevens and Bushman although never left the door unlocked. Both Neuman and another witness, Jeff Allen, testified that Stevens and Bushman always locked, their doors kept and that when someone came to their door or Stevens Bushman would look out the window before allowing the Allen testi- person entry.
334 fied that had been well with defend- acquainted Stevens him. In- drug ant and had engaged past dealings found no at the Stevens/Bushman residence vestigators of forced signs entry. Adams, movements
Witnesses also detailed the Duncan, the mur- preceding defendant on the days and 23, 1982, and Adams had traveled ders. On Duncan May from an ac- Missouri, to Kansas to purchase drugs City, was purchase money of Duncan’s. All of quaintance house their return to Adams’ supplied by Upon Adams. calls “to out phone get on Adams several May placed available. Defendant came the word” that he had cocaine to cocaine on to Adams’ house and attempted purchase leave as collat- credit, to a .45-caliber revolver offering defendant re- eral, Later, but Adams refused the offer. credit, high- and on leaving turned cocaine purchased Adams, Duncan, Meanwhile rifle as collateral. powered consumed cocaine at Adams’ and several other persons 24. house on day May throughout left his morning May on the Adams Early re- and to Stralow’s house. Defendant Randy house went house, staying. turned where Duncan was Adams’ cocaine for several Duncan and defendant consumed time Stralow’s telephoned hours. this Duncan During The times, four to Adams each time. first talking house a.m., call, when Adams inquired at about 2:30 Duncan a.m., Duncan call, about 3:30 would return. The second run off Brutus, had dog, informed Adams that Adams’ girlfriend, outside. Defendant and his when was let Brutus then out to find and try Rhonda went Odquist, Falls police at the Rock dog filed a report missing on found Brutus and re- an hom- later they station. About home, called Adams turned him and Duncan returned. time informed him that Brutus had third a.m., Defendant Adams’ house sometime around left Adams, again asking a fourth call and Duncan made Adams when he would return. $1,800
Stralow testified that Adams had had about on had it sev- and Adams counted person morning, eral times. Adams left house with the money Stralow’s at 7 a.m. No found on Adams’ or body about money in his after house the murder.
The State also introduced evidence as to statements made to the grand police jury. Adams, Defendant had he, mentioned that and Stevens a “drug triangle,” been each the others to helping sell drugs they when had some available. He also admit- ted 22, 1982, to a burglary where several May pistols *10 were stolen from the house of a man named Dennis court, Burris. The however, refused to let defendant on cross-examination out bring additional exculpatory por- tions of the same statements. killed
Although weapon which Stevens and Bush- man was never recovered, the State linked the murder to the Burris Burris weapon testified that he burglary. had shot a a .22 dog with one of the stolen magnum, pis- tols, to the The prior burglary. dog’s was exhumed body and, to the according State’s firearms expert, bullets found were dog fired from the same as the gun bullets found in Stevens and Bushman.
Two witnesses, Stalder, Darrell Onken and Edward also testified to the Burris Onken testified that burglary. he, Stalder, 22May and defendant were at a drinking local tavern. all talked about how had little They they money, including defendant. decided to commit a They drove to Burris residence. Onken stood burglary lookout while Stalder and defendant into the went house. sack,” returned with a Onken They although did “gunny not see what was in the testified that he sack. Onken did not receive any proceeds from did burglary what, know if the other two re- anything, participants ceived. in a the three had been also confirmed that
Stalder decid- their lack of before money local bar about talking they a testified to commit Stalder ing burglary. .22 a .38-cali- magnum, pistols including stole several Stalder eventu- powder pistols. ber and two black pistol, but guns the two powder took the .38 and black ally which the .22 magnum that he did not receive claimed mur- and Bushman linked to the Stevens was eventually ders. around after driving testified that while
Stalder also in “tak- Onken, asked him to join off defendant dropping Accord- drug business. County over” Whiteside ing he and Stalder suggested to Stalder defendant ing sure Duncan and “make from Adams and drugs steal that he de- left.” Stalder said there wasn’t witnesses offer. clined this to show that after testimony
The State also offered large had defendant, unemployed, the murders who af- day said that on amounts of One witness money. a defendant station bill paid gas ter the murder witness, said Doyle, Patty bill. Another $100 after a few days wad” bills “large defendant she talked also testified when the murder. Doyle “Jim defendant said that the murders about left at Randy’s said all the coke was [Stralow].” [Adams] She stated on his mother testified behalf. Defendant’s *11 amount of money received a large that defendant had 6, girlfriend, 1982. Defendant’s from a loan on May bank 6:45 a.m. on May that about testified Odquist, Rhonda at fishing, returning to go left his house 25 defendant that saw witness said 7:30 or 8 a.m. Another about 7 a.m. on canal at about fishing truck near a defendant’s 25. May saw they testified for defendant
Other witnesses in front of the look like did not persons who the times on various residence at Stevens/Bushman 337 25. morning May
Duncan’s as to testimony case included Duncan’s own the to Kansas and the to the mur- trip prior events City ders. He claimed that 5:30 a.m. on 25 he had May about taken a an capsule containing sinequon, antidepressant At the re- which can induce drug deep sleep. police’s a test on at Duncan had had blood about quest May of sine- results had revealed p.m., presence witnesses, The could quon however, his system. expert when Duncan taken the or specify sinequon how much he had taken.
We address defendant’s that he argument initially from precluded bringing out improperly exculpatory portions his statements to the and the police grand statements, The State jury. introduced those portion defendant, the statement including Adams, Stevens were a and defendant’s “drug triangle,” admis sion that he took in the Burris Peo part burglary. Citing 2d ple Weaver Ill. defendant argues of a part when statement is admitted into evidence a defendant has the to introduce the rest of the right statement. assertion, however, This far sweeping goes In de beyond Weaver decision. Weaver the additional tails sought which defendant to introduce were neces from misled sary prevent jury being by por tion of the statement introduced the State. The by Weaver court thus held that additional of a portions statement must be admitted when necessary prevent from receiving misleading as to impression nature of the 2d statement. 92 Ill. 556-57.
In bar, however, the case at defendant did not argue at trial that the of the statements introduced portions argued State were He when misleading. merely of a statement is the defendant intro- part may admitted duce other of the statement part any purpose. Defendant, effect, to introduce his own ex- attempted *12 take the stand without to having statements
culpatory Weaver such a does not approve impeachment. and face no to introduce right portions A has result. defendant the jury are not enable necessary a statement which by introduced evaluate portions properly State. by statements introduced
One of defendant’s the Burris admitting grand testimony State was his jury after immediately out that he appeal points On burglary. he, not had Stalder, and he claimed this admission to kill used eventually taken the .22 which was magnum to al- He the failure Bushman. argues Stevens and the mis- statement gave jury of the part low this had admitted possess- that defendant taken impression this argument merit murder weapon. Despite ing defendant’s no to disturb have, it affords basis might trial. At trial not raised at it was conviction because as statement this particular did specify the reasons use, why one he wished to nor did explain Instead he asked admitted. a statement should be such in all exculpatory portions to allow generally sponte not sua scruti- The trial court need statements. if there may to determine statements nize the proffered It is thereof. some small portion a rationale to admit be what specify portion responsibility defendant’s approved the purpose is necessary statement Weaver. responsibility. here did not meet that Defendant waive that he did not validly also argues
Defendant his at- himself and conflict of interest between potential disclosed selection was In the middle torney. the Il- investigated by counsel been that defendant’s for allegedly of Law Enforcement linois Department The investiga- Darrell Onken. witness, tampering had urged the attorney allegations centered on tion between Conversations testimony. Onken to fabricate tape-recorded pursu- were and Onken lawyer defendant’s to an ant order. Defendant advised eavesdropping court that lead a con- investigation might flict interest himself his attorney, between *13 defendant was of all of the given transcripts tape-re- corded The the conversations. State informed court that did not they prosecute defendant’s plan lawyer. Defendant, however, not admonished as to the was possi- of the bility against In disciplinary proceedings attorney. to the court’s response questioning defendant indicated he that wished to continue to be his at- represented by notwithstanding the conflict. torney potential Defendant argues now was waiver invalid because was informed that the State would prose cute his but was not informed that his attorney attorney face could as a result of the al disciplinary proceedings leged misconduct. The fundamental effective right as sistance of requires counsel that defendants be afforded counsel who is free of conflicting (Glasser interests. v. United States 315 U.S. 86 (1942), 60, 76, 680, L. Ed. 702, 62 457, 467-68; S. Ct. v. Kester 66 People (1977), 162, Ill. 2d The counsel 166.) right conflict-free may waived v. be Arkansas 435 (Holloway (1978), 475, U.S. n.5, 426, 483 55 L. Ed. n.5, 1173, 2d 433 98 Ct. S. n.5; People 168), Kester 66 Ill. 2d but such a waiver must be Ill. 2d knowing (66 168). A defendant will not be deemed to a have waived conflict unless he is admonished as to the existence of the con 162, 168-69. flict its 66 Ill. 2d significance. mean,
This does not however, the trial court must In engage counseling the defendant. the at case bar conflict and apprised potential provided transcripts.of conversa- tape-recorded tions between his and Darrell Onken. attorney Defend- of ant was made general aware significance conflict by being informed that the misconduct alleged lead could to criminal prosecution against attorney. to the general The to admonish the defendant as duty mean that the trial court nature of conflict does not must ramification every potential detail painstakingly of in- conflict. The admonitions and disclosure potential sufficient, formation in the instant case were we waived any poten- therefore hold that defendant validly tial conflict. mistrial should have
Defendant also argues been declared the State was unable substantiate when witness. of a defense attempted key impeachment defendant’s testified girlfriend, sup- Rhonda Odquist, alibi, there was a as to question of defendant’s but port 25. morning Odquist her during May alertness a seda- testified that she had taken direct examination on cross-exami- May tive on the afternoon but pill asked she previously nation the whether prosecution during sedative told she police ingested *14 later on 25. The prosecution hours early morning May had mistaken, that had and Odquist discovered been they Defendant moved for not in fact made such a statement. mistrial, attorneys and the court recessed so morn- following could on the The point. submit authority cured in- the error could be by court decided ing disregard attempted impeach- to structing jury as admonished thereupon ment. The court follows: I am gentlemen jury, good morning. of the
“Ladies and legal we had matters which we delay, for but sorry jury. yes- of the Late presence to consider out of the witness, was on Odquist, afternoon the Rhonda terday that exami- during the course of testifying, the stand of her nation, inquired the prosecution Mr. Rotert for Adams that in the residence James you ‘When were to as what is referred evening, given were particular you Duncan?’, Bill given pill by were you a downer and inquired then ‘Yes’. Mr. Rotert responded to which she you Duncan while were by Mr. given you her ‘This was in the midnight residence between and 4:00 in the morn- ing?’, and she ‘No’. Mr. Rotert of her responded, inquired answered, given you?’, ‘When was and she ‘In the Rotert, Thereafter, afternoon’. Mr. for the prosecution, her, inquired talking ‘Do recall to a you Detective named Harlan Carbaugh deputy and a Sheriff Glenn Frank relationship investigation to the of this case 9, 1982?’, on June to which she responded ‘No’. He then them?’, asked her ‘You talking don’t recall and her an- swer was T don’t recall the two names of the men.’ ‘Did you any have police interview with two officers in re- gards 9, 1982?’, to the homicides June and she re- T sponded, talked to two He police officers’. then in- quired of her you ‘And told them at that time that before you left Adams’ residence the dog after had been recov- ered that you took a Odquist downer?’. Miss answered ‘No’. She did not tell them that. It was during thereafter the re-direct examination that Mr. Walter called it to the Court’s attention that Miss Odquist had never talked to a detective named Carbaugh Harlan and a Deputy Sheriff Frank, Glenn and Mr. Rotert for prosecution admit- ted that he was in error in that. The Court you instructs this evidence is to disregarded be jury. That Miss Odquist was in fact in answering correct that she had not given such a statement officers, to those police you are to draw any inferences from these ques- tions and answers that Miss Odquist spoke untruthfully subject. on that You are not draw such infer- ences.”
It is for the improper to ask a prosecutor witness questions purposes impeachment unless the prose cutor is to offer prepared proof infor impeaching mation. v. Burbank (People (1972), 53 Ill. 2d 269-70; People v. Wallenberg 24 Ill. 350, 353.) 2d In the *15 case, however, instant the curative instruction to the jury served the completely remedy improper impeach ment. The trial court the clearly explained prosecutor’s mistake, in light the court’s admonition there is no way which the defendant could have been preju-
342
diced the incident. If anything disclosure error to the undermined the prosecution’s credibil- not ity, that of the witness. We therefore do not find the denial of a mistrial to be error.
Defendant also that his argues conviction must re- be versed because the failed to prosecution disclose exculpa- v. required by Brady defense, information to the as tory Maryland (1963), 373 83, 215, U.S. 10 L. Ed. 2d 83 S. Ct. At 1194. hearing defendant’s mo- post-trial tions the defense a witness named presented Barry Tillman. Tillman testified that a named woman Sherry had told him that Thompson wife Kevin Anderson had told Thompson (Kevin she Anderson’s had wife) Adams, been at the present Stevens and Bushman mur- ders. This relevant, defendant, information was argued since Kevin Anderson was an alternative suspect in- Tillman that he had mentioned this murders. testified formation to the State’s and to a officer. Attorney police The State had disclosed Tillman’s name as someone they to, had talked had not told the defense the substance but of his revelations.
The the claim that Tillman given State disputes trial, this information to the State’s agents prior but Brady no we need not decide this factual issue. There is violation if the nondisclosed information is not “mate- (United Bagley States 667, 678, rial.” 473 U.S. 481, 3375, S. Evidence 491, 3381.) L. Ed. 2d Ct. is if probability “material” there is reasonable “only defense, that, had the evidence been disclosed to have been different.” result of would proceeding 481, 494, 87 L. Ed. 2d 105 S. Ct. (473 U.S. here not The nondisclosed evidence could 3384.) is com- have affected the outcome because possibly as admissible and would have been hearsay pletely to no admissible Further, can evidence. point led have the Tillman information would evidence which *16 343 to Tillman’s reve- the failure disclose to. For this reason fair trial. defendant of a lations did not deprive trial denied a fair also that was argues Defendant trial of the court refused to venue change when the 101 Ill. 2d v. Taylor (1984), to another In county. People to the failure to due 377, this court reversed a conviction of the venue, but noted several a grant change evidence of inadmissible knowledge had jurors specific Ill. 2d for cause. (101 and should dismissed have been A for of venue must be 377, change motion 388-90.) “ to grounds when ‘there are reasonable granted only exists and that that the prejudice alleged actually believe there reasonable apprehen reason of the is prejudice impartial sion that the accused cannot receive a fair and ” 41 Ill. 2d (1968), trial.’ v. Gendron (People As a 329, 331.) 37 Ill. 2d People Berry (1967), v. quoting a of venue matter this means that practical change it will granted apparent should be when it becomes unfamiliar not 12 jurors sufficiently be find possible for challenge of the with the details case withstand Ill. 2d 387. cause. 101 People Taylor ex- In the that there was undisputed case at bar is murders, tensive which were publicity regarding in unusual and sensational event Whiteside highly in- Moreover, clearly the extensive publicity County. be cluded mention of evidence which would prejudicial motion in Attached to the inadmissible the murder trial. of venue were affidavits change approximately of the opinion Whiteside citizens who were County Also county. a fair trial get defendant could of newspaper reports attached to the motion were copies coverage defendant, front-page extensive including about several specific criminal record and defendant’s prior in- in the instant other than the ones charged offenses dictment. a large selection it revealed that
During jury some had jurors acquaintance number prospective After defendant exhausted his peremptory case. for a of venue. challenges change he renewed motion Most of the actu- The motion was denied. again persons heard of the case prior chosen for the ally in- is, however, nothing the trial. There the record had been jurors actually dicate that accepted *17 to and inadmissible prejudicial public- of exposed of chal- Moreover, none the actual had been jurors ity. these cir- for cause either defendant. Under lenged the denial of defendant’s cumstances cannot that say we trial him a fair motion a of venue change deprived an jury. before impartial that he was argument next defendant’s
We address of prospec due because of the exclusion denied process automatically tive indicated that would jurors they who court death This vote against imposition penalty. raised by has examined issues exhaustively already that this contention and has determined this procedure to drawn not a defendant the right jury does deny v. (People from a fair of the community cross-section Gacy (1984), v. People Neal 180, 197; 2d 111 Ill. (1985), v. People Silagy 101 Ill. 2d 37-38; (1984), 2d 1, 103 Ill. 147, 165), it result in a conviction-prone nor does v. People v. (People Neal 197; 111 Ill. 2d (1985), Gacy People Collins 279; 106 Ill. 2d (1985), to dis see no reason now 37-38). Ill. 2d We these rulings. turb recent it was error to argues deny
Defendant also In support and Duncan’s motions for severance. pretrial indicated of these motions Duncan’s counsel the ev- trial inferences from at argue planned Duncan, commit- defendant, idence showed that Duncan’s counsel pointed ted the Specifically, murders. had large assertion that defendant to Patty Doyle’s murders, state- defendant’s amounts of after money ments to Stalder to “take regarding plan over” the traffic, and the drug evidence the murder linking to the Burris weapon and stated that this burglary, evi- dence showed defendant had the murderer. He been also noted that Duncan stand, take the and if he might did, Duncan’s counsel asserted, Duncan would testify that defendant was murders, to the present prior was aware of the fact that Adams had co- money and caine. Duncan’s Finally, counsel indicated that he might want to introduce defendant’s statements to the police that the event State did not.
In addition to the of counsel representations the rec- ord also indicated that the initial during investigation the murders Duncan had agreed wear eavesdropping equipment record conversations several persons, including defendant.
The State, response the last of the amended sev- motions, erance stated that the prosecution would not in- troduce the portions Duncan’s statements which impli- cated defendant. addition, In tape-recorded conversations between Duncan and defendant were *18 never offered as evidence. The trial court ex- extensively amined Duncan’s statements and deleted the numerous references to defendant.
As a general rule defendants who are jointly indicted are to tried be unless jointly a trial is separate necessary to avoid to one v. prejudice of defendants. (People Bean (1985), 109 Ill. People v. Daugherty 80, 92; 2d (1984), 533, 102 Ill. 2d 541.) Illinois law two recognizes for separate grounds severance. The first is the confron tation which problem arises when the State attempts utilize statements of one codefendant implicate which (Bruton v. other United States defendant. (1968), 391 123, n.10, U.S. 134 476, n.10, 20 L. Ed. 2d 484 88 S. Ct. Bean People v. 1620, n.10; 1626-27 109 Ill. 2d (1985), 80, This 93.) can be cured either problem severance or by by
346 all references to the mov from the statements removing v. Bean (People 80, 93; 2d defendant. 109 Ill. ing (1985), v. People Daugherty 533, 2d (1984), 541-42.) 102 Ill. is code However, ground a second severance when are so that one codefend antagonistic fendants’ defenses a fair trial when tried jointly. (People ant cannot receive v. v. Bean People Daugherty 93; 80, 109 Ill. 2d (1985), 533, Ill. 2d This cannot be (1984), 542.) problem 102 short of trial any severing solved measures by People v. Bean (1985), 109 Ill. codefendant. prejudiced v. People Daugherty (1984), 80, 533, Ill. 2d 93; 2d 102 542. de
A motion to sever on the basis of antagonistic the trial the sound discretion of fenses is addressed People v. Bean (People 80, 92; court. 109 Ill. 2d (1985), v. People v. Daugherty (1984), 541; 533, 2d 102 Ill. Canaday 49 2d The motion cannot (1971), 424.) Ill. but must state prejudice on mere rely apprehensions trial. joint how the defendant would be prejudiced v. Lee People v. Bean (People 92; 2d Ill. (1985), Ill. on the 182, 186.) However, ruling 2d “the papers motion the court must take into account counsel, other and arguments presented, proceedings.” of the case from the knowledge developed People Daugherty 2d (1985), 102 Ill. 541. the suffi-
In at bar we need determine the case find motions because we ciency of severance and defendant was not between Duncan any antagonism fair trial. We find so severe as to deprive counsel at- in the fact that Duncan’s prejudice little very witness, Rhonda Od- tacked the of defendant’s credibility in fact inconsistent testimony quist. Odquist’s Further, testified that while Duncan himself inconclusive. amounts of cash that Adams had large defendant knew hand, corroborated merely this evidence cocaine *19 in closing this ar- point. Finally, evidence on State’s gument Duncan’s counsel stated that defendant merely was more to have committed the murders than likely Duncan did not argue but specifically had, fact, committed the crimes. minor Any prejudice which have occurred was less than that found may suf- ficient to reverse in cases such as Daugherty and Bean.
Defendant also claims that the trial court allowed hearsay. inadmissible Prior to trial defendant moved exclude certain statements made James Adams sev- eral hours before his death. Prior his death Adams been at house a man named Stralow. Randy Adams told allegedly Stralow that “his friends” were to lure him trying home. Referring the fact his Brutus, had dog, gotten free, Adams said allegedly “he figured let him they out.” Adams also reportedly said that he felt bad because would have to tape cocaine to his chest to “his keep friends” from stealing it. The evidence indicated that both Duncan and defend- ant were at Adams’ house at the time Adams allegedly made these statements to Stralow. Defendant argued that these were statements used to hearsay being show that Adams feared the defendants. The State argued that the statements showed that merely Adams’ state of mind was such that he felt he had to hide his cocaine. statements, The the State claimed, were offered to ex- plain Adams was cut why knife instead of being shot as were Stevens Bushman, the State theorizing that Adams was tortured in attempt an to have him dis- close where he had hidden his cocaine.
The trial court ruled that of Adams’ many statements court, were however, The inadmissible. ruled that State could introduce the statement that Adams “fig- ured let Brutus The they out.” State was also allowed to elicit the statement that Adams “felt bad because pretty I feel like I’m to have to going tape to my [the cocaine] however, chest.” The court ruled, that the State was not *20 defend- use the statement to that Adams feared to show Nonetheless, ant. the State closing argument argued the that Adams knew that statement showed this more than drug defendant and Duncan “wanted else in life. He could see and anything wanted they not to that object sense it Defendant did coming.” part of closing argument. the belief that he State that Adams’ agree
We the signifi- did have some would have to hide cocaine that Adams as for the fact explanation cance an as were Stevens and Bush- being knifed instead shot in closing argu- man. use this evidence Any improper to ment was waived defendant’s failure object. Adams’ However, we with defendant agree he let Brutus does not out” “figured they statement the the to rule exception for state-of-mind qualify that defendant and The victim’s against hearsay. belief out no significance Duncan let his dog independent to offered to show that obviously the case and was out. As let Brutus and Duncan had fact error, however, The hearsay. such it was inadmissible against minor. In view of the evidence strong was very to reverse defend- defendant, the error is insufficient ant’s conviction. closing the
Defendant also argues prosecutor’s of the significance minimized the arguments improperly however, defendant, The court’s instructions jury. remarks, the is- and thus not of these did object so the remarks were deemed waived unless sue must be exam- error. We have as to constitute plain prejudicial er- and find no reversible remarks prosecutor’s ined the ror. improperly the trial judge
Defendant also claims that see jury allow failed to exercise his discretion deliberations During jury trial transcripts testimony. see tran- asking to to the judge sent a note jury trial of several court scripts testimony witnesses. The had a discussion with the State and with counsel for defendant, Duncan but the substance of discus- sion does on the The appear record. court noted record that sent to the note which jury read:. “No, the are not must transcripts available. You rely The your memories.” court noted defendant’s objection to the failure to provide transcripts to the jury.
This court has held that transcripts may testimony to the if be shown so if jury requests court, in discretion, trial its believes will transcripts *21 Queen (People be v. 56 2d helpful. (1974), 560, 565; Ill. 361, 56 In People Queen, v. Pierce Ill. 2d (1974), 364.) as in case, the the discussions between the court present and counsel on did not the appear record. The record showed the court only sent the a note which jury read: “You must on decide the basis of the testimony heard in the courtroom. I cannot have of any testimony witness read to This you.” court reversed con the viction, that the court’s holding note demonstrated that it did not realize that it had any discretion at all. Ill. (56 2d 560, We believe that the 565-66.) trial court’s remarks in the case at do not bar evidence a failure to exercise discretion, and thus we find no in error the refusal to send to the transcripts jury.
Defendant also claims in error the trial court’s refusal the give second of the paragraph pattern Illinois jury instruction circumstantial evidence. The full instruc- tion reads as follows:
“Circumstantial is proof evidence the of facts or cir- give cumstances which rise to a reasonable inference of guilt other facts which tend to show the or innocence of [(the) (a)] defendant. Circumstantial evidence should be you together considered the with all other evidence in arriving your case in at verdict. You guilty should not find the defendant unless the proved or exclude reasonable every facts circumstances Instructions, theory of Pattern Jury innocence.” Illinois Criminal, (2d 1981). 3.02 ed. No. 2d the court People
In v. Evans 87 Ill. (1981), the second of use of specifically required paragraph “the of this instruction as to each ele guilt, when proof offense, ment of the is The court has circumstantial.” People (1985), reaffirmed the v. Crow requirement. twice Ill. 533-34; 2d 108 Ill. 2d Jones People 342, 355-56. all
In the we need not decide whether case at bar was circumstantial. In view the State’s evidence evidence we find that failure prop- nature most at harmless error. instruct was erly in the Dennis burglary Defendant’s participation uncontroverted, as the evidence Burris’ home was found Bushman a the bullets in Stevens and linking Moreover, Stalder, in Ed burglary. par- taken gun he did not receive testified ticipant burglary, and that proceeds burglary, the murder as weapon Moreover, last in defendant’s possession. saw defendant, a few before days Stalder testified murders, join that Stalder defendant suggested “leave no and Duncan and scheme off” Adams “rip the evidence showed that Finally, witnesses.” *22 the but had murders very money just had little before In view cash after the murders. of just amounts of large not that verdict this evidence do believe the jury’s we had the different second paragraph would have been any given. of the circumstantial evidence instruction been regard raises issues with Defendant also several that claims the First all defendant sentencing. was the sentence death sentence cannot stand because killed personally that defendant upon findings based It is and that defendant robbed Adams. James Adams he is attacking clear defendant’s brief whether from the if he that only sentence or is his conviction arguing must It for Adams’ murder be reversed. makes no dif- ference, because, above, however, as noted the evidence that defendant killed Adams is and the fact very strong, that cash suddenly large amounts of after murders, the while Adams’ cash is suddenly disappeared, strong Moreover, evidence of the lack of robbery. blood Duncan, on who was in the found same clothes sleeping murders, he had been the wearing before warrants the inference defendant, Duncan, and not com- actually mitted the fatal therefore find no error in stabbing. We sentencing court’s findings.
Defendant also argues that trial court improperly placed proof burden of at sentencing defendant. At one point court stated that defendant had “the burden of proving death does not penalty] [that However, taken in context it is apply.” clear that trial court meant that once only the State established the existence of factors defendant statutory aggravating had the burden forward coming with evidence miti gating factors preclude sufficient imposition death court penalty. already This has determined such a burden is constitutionally permissible. People Del Vecchio 105 Ill. 2d 445-46. argues
Defendant also error for the sen tencing court to refuse to consider for the sympathy defendant as factor. In mitigating People v. Stewart 463, 493-94, Ill. 2d (1984), 104 this court an in upheld struction that “neither sentencing jury sympathy nor should influence prejudice you” determining whether the death is We continue to penalty proper. ad here to the position stated in Stewart is sympathy not a factor be in a proper penalty considered death hearing. reject
We also defendant’s contention that the Illinois death statute is penalty unconstitutional because it gives *23 not the death discretion as to whether or prosecutor continue to adhere to sought. will be We
penalty hearing Carey ex rel. v. People position we first stated Cousins (1979), 531, 77 Ill. 2d 536-43. to
We also decline defendant’s
invitation
overrule
People v. Del Vecchio (1985),
For The clerk of Whiteside is affirmed. County circuit court Tues setting court is directed enter an order of this the sen 16, 1986, as the date on which day, September in the circuit court Whiteside tence of death entered The shall be exe is to carried out. be County sec by in the manner injection provided cuted lethal by of 1963 of Criminal Procedure tion 119—5 of Code A certified 5). ch. par. Stat. (Ill. Rev. 119 — be transmitted in this case shall of the mandate copy Corrections, Director of the clerk this court Center, and to the of Stateville Correctional warden is confined. wherein defendant warden of the institution Judgment affirmed. SIMON, dissenting: JUSTICE accused is circum an against When all the evidence People Crow 108 Ill. 2d nature, stantial mandates that the court instruct not to find the *24 or unless the facts circumstances guilty exclude I proved reasonable innocence. every theory with the in disagree holding error not majority giving instruction this here was harmless Ill. 2d at (112 I 350); would therefore reverse the defendant’s convic
tions and remand for a new trial.
It is clear from the recitation of facts in the majority opinion no direct against evidence the defendant was presented. v. (Cf. People Crow 108 Ill. 2d Nevertheless, 520.) a well jury could have found Olinger guilty a beyond reasonable doubt based on the circum stantial he was evidence: at victim placed Adams’ house murder; the morning the gun which killed Stevens and Bushman had been stolen from its in owner in which he and Ed Stadler burglary participated; was observed with a wad” of cash “large following killings; and (according Stadler) he had an previously nounced his intention to take over business in drug Whiteside County from by stealing drugs codefendant Duncan and Adams and sure there making were no wit nesses left. This evidence, however, was not sufficiently strong to a reviewing court to find that permit the error in to instruct failing harmless; was jury this properly is particularly so in view of the other errors which oc curred.
Our recent decision in People Crow is instructive. There the defendant was with the murder of charged her husband. According our opinion case, testi- her at the crime mony placed scene—the defendant’s and victim’s home—around the murder; time of the apparent the gun used as the murder which had weapon, been defendant, purchased found in the house af- ter the shooting; believed that there police had been a transparent to make the attempt as if it killing appear occurred in the course of defendant had burglary;
a motive in that her husband was involved with another stated that she would woman and defendant had once involved; kill if he so and there her husband ever became forced the house. this Despite was no into sign entry find the error evidence, this court refused to harmless the- every not exclude reasonable instructing jury of innocence. ory to have been scrutiny appears ap-
A different level to the evidence in this case. While the evidence plied I incriminating, am against certainly the defendant was from the cold record that a say prop- willing necessarily instructed would have convicted erly defendant. to find harmless should be slow error especially
We *25 As where, here, other errors also occurred. significant as concludes, Stra- example, itself majority Randy the figured Adams had said low’s testimony in order to lure him dog let the out and Duncan Olinger hearsay. home was inadmissible the trial have frustrated ruling judge may Another of the efforts to reach an accurate determination jury’s the ask judge or innocence. The sent note to jury guilt of the of wit see the several ing testimony to transcripts the a note nesses; sending responded by the court You "No, are not available. transcripts read: the which this in Nothing response memories.” must rely your he had realized that judge to me that the trial indicates and simply the transcripts discretion provide the Queen People Thus, as in inadvisable. thought revers committed judge Ill. 2d the trial 56 (1974), The sum exercise discretion. by failing ible error involving case transcripts, refusal to provide mary the have exacerbated witnesses, could only 60 more than the defendant find the jury failure to instruct it was circumstances facts and unless on the based guilty of innocence. theory to exclude reasonable every able disagree I with the conclusion that Finally, majority’s the death should be even penalty upheld though trial imposed who the death sentence con judge was obviously fused on the of question burden at the sen proof tencing Since a standard of hearing. high procedural accu is to a sentence racy required proceedings leading death v. Holman Ill. I (People (1984), 177), 2d this believe court has not sufficient attention given trial statement judge’s the defendant had “the bur den of proving death does not penalty] apply.” [that
This court
held that “at
has
aggravation
miti
gation hearing,
but,
there is no
rather,
burden of proof,
have
People
the burden of
going forward
evidence.” (People
v. Del
Vecchio
105 Ill. 2d
446.) There can thus be no dispute that the trial judge’s
erroneous;
statement was
the State conceded as much in
Nonetheless,
its brief.
asserts
ex
majority
without
planation that “in context it is clear that the trial court
meant
only
once the State established the existence
factors
statutory aggravating
defendant had the bur
den of
forward with evidence of
coming
fac
mitigating
tors sufficient to preclude
of the death
imposition
pen
alty.”
Neither Del Vecchio nor People v. Williams (1983), 97 252, 302, Ill. 2d held that the defendant has any burden forward coming with evidence. Those cases held only that the State must come forward with evidence aggra vation. The sentencer may refuse to impose death *26 based penalty upon drawn from evidence mitigation at trial, from the State’s case at hearing, or sentencing as simply an exercise The claim that the mercy. defend ant has the of coming burden forward with mitigating evi dence that the death erroneously suggests must penalty be if imposed the defendant not I does do so. do not be lieve that the eighth amendment such a permits result.
More important case, to the defendant in this who did conclu is the mitigation, majority’s on evidence
put what he said. The sion that the trial did not mean judge not portions does which majority opinion identify “clear” that record the context which makes provide burden of the defendant had no understood judge Ill. (112 “does not apply” the death proving penalty made some statements 351). Although judge 2d at as correctly explaining interpreted which could be sentence, I can method for determining appropriate conflicting his expres which of say with certainty I vacate would therefore sions action. actually guided the death sentence. 61315,
(Nos. cons. al., et T. STANLEY Appellees, JOHN C. BOYNTON al., et JR., Clerk, Appellants. KUSPER, County Rehearing February Opinion 1986. filed April 1986. denied