People v. Burrows, 69161

• Decision Date: 26 March 1992
• Docket Number: No. 69161,69161
• Citation: 148 Ill.2d 196,170 Ill.Dec. 317,592 N.E.2d 997
• Parties: , 170 Ill.Dec. 317 The PEOPLE of the State of Illinois, Appellee, v. Joe BURROWS, Appellant.
• Court: Illinois Supreme Court

Page 997

592 N.E.2d 997

148 Ill.2d 196, 170 Ill.Dec. 317

The PEOPLE of the State of Illinois, Appellee, v. Joe BURROWS, Appellant.

No. 69161.

Supreme Court of Illinois.

March 26, 1992.

Rehearing Denied June 1, 1992.

Charles M. Schiedel, Deputy Defender, and John J. Hanlon, Asst. Defender, Office of the State Appellate Defender, Springfield, for appellant.

Roland W. Burris, Atty. Gen., Springfield (Rosalyn Kaplan, Sol. Gen., and Terence M. Madsen and Douglas K. Smith, Asst. Attys. Gen., of counsel), for the People.

Justice THOMAS J. MORAN delivered the opinion of the court:

The defendant, Joe Burrows, was indicted, along with Ralph Frye and Gayle Potter, by an Iroquois County grand jury for the murder and armed robbery of an 88-year-old man, William Dulin (Dulin). Defendant's motion for severance was allowed, and after his first trial resulted in a mistrial, he was retried and a jury found him guilty of murder and armed robbery. At his sentencing hearing, defendant waived his right to a jury and the court sentenced him to death. Defendant's death sentence was stayed (134 Ill.2d R. 609(a)) pending direct review by this court (Ill.Const.1970, art. VI, § 4(b); 134 Ill.2d R. 603).

The pretrial issues that defendant raises are as follows: (1) whether the trial court erred in refusing to dismiss his indictment where the prosecutor did not present the statements of Rick Troyer, Charles Gullion, and Rick Gillespie to the grand jury; and (2) whether defendant was denied the due process of law where the prosecutor and the trial court refused his request to have Gullion and Gillespie immunized from prosecution.

Defendant raises the following issues relative to the guilt phase of the trial: (1) whether he was proven guilty beyond a reasonable doubt; (2) whether the testimony of Frye's defense attorney was irrelevant and prejudicial; (3) whether defendant was denied effective assistance of counsel; (4) whether defendant's confrontation and due process rights were denied when the court made remarks to the jury as to the reasons for the delay in Frye's sentencing hearing; (5) whether the State's closing argument denied defendant a fair trial; and (6) whether the court erred in admitting Potter's testimony from Frye's trial.

Concerning defendant's sentencing hearing, defendant raises the following issues: (1) whether the court's finding of only one mitigating factor was proper; (2) whether the court was correct in finding defendant eligible for the death penalty; (3) whether double jeopardy principles prohibited the State from seeking the death penalty; and (4) whether defendant's sentencing hearing was unfair in that the State was not limited to one closing argument.

Lastly, defendant challenges the constitutionality of the death penalty statute.

The State presented the following evidence at defendant's trial. Patricia Swan, Dulin's daughter, and her husband, Robert Swan, testified that on Tuesday, November 8, 1988, they traveled from their Indiana home to Dulin's home, which was located in Sheldon, Illinois. They arrived at Dulin's home, knocked on his front door, walked inside, and found Dulin lying face up on the living room floor. He appeared to be dead, so Robert Swan contacted the police.

Lieutenant Robert L. Flesher, of the Iroquois County sheriff's department, testified that on November 8, 1988, at approximately 8:45 a.m., he was notified that a man was found dead at the Dulin residence. He went there and found Dulin lying just inside the front door. Flesher contacted the sheriff's department and asked that the sheriff report to the crime scene.

Tommy Martin, a crime scene technician with the Illinois State Police, received an assist call from Iroquois County and went to the crime scene accompanied by the sheriff and the coroner. He investigated the scene and his testimony in this regard was generally as follows: he checked for signs of forced entry around the Dulin home but found none; he did a "walk through" of the living room and, afterwards, he took photographs of the crime scene; he observed a white male clothed only in long underwear lying face up just inside the front door; he discovered plaster near the body and thought that it had come from the ceiling because there were two holes and a deflection mark in the ceiling; he recovered a BB gun safety and a slug from a throw rug near the body; he also recovered a flattened slug that had plaster imbedded in it; this particular slug was found on the floor near the living room wall and it matched with the deflection mark in the ceiling; he checked the residence for fingerprints, but no identifiable prints were found; however, he did discover fabric marks (resembling a clothing weave) on several areas within the living room--on the bedroom door, on the inside of the front door, on picture frame glass, and on the living room desk (on cross-examination he admitted that, in his prior testimony, he did not mention that there were fabric marks on the desk); he stated that fabric marks can occur by brushing up against a surface, through normal cleaning and dusting, or by intentionally wiping a surface for the purpose of removing fingerprints; blood samples were also taken from the living room wall on either side of the front door, from an envelope and some pieces of paper that were on the living room desk, and from the threshold area of the front door (a serologist testified that tests performed on blood stains taken from papers found on Dulin's desk could have originated from Potter, but not from defendant, Dulin, or Frye); he witnessed the autopsy; he observed wounds to Dulin's hands and noticed that his fingernails were broken--this was an indication that some type of struggle had taken place; he pulled Dulin's skin back and, with the aid of a high-powered flashlight, he did not find any flesh, hair, fibers or blood under his fingernails; he noticed there was a black sooty substance, which appeared to be gunpowder, on the right sleeve of Dulin's long underwear top; and he recovered a third slug when the coroner removed one from Dulin's neck area and gave it to him.

James Roberts, a firearm and tool mark specialist, testified that he received a nine-shot, .22-caliber revolver from John Dierker, a forensic scientist, and three .22-caliber slugs from Tommy Martin, a crime scene technician. He test fired the gun and determined that the three slugs could have been fired from the revolver.

Dr. James Blanding, a general pathologist, performed an autopsy on Dulin and his testimony was generally as follows: he noticed wounds to both of his hands and that his fingernails were "broken off in different areas"; there was a graze or "through and through" wound to the left shoulder where a bullet had passed through; there was a pattern abrasion to the posterior side of his left shoulder which he opined resulted from either the victim's crawling or being dragged; there was a gunshot wound just above the left ear and it appeared to be a relatively close shot because there was unburned gunpowder about an inch and a half in diameter around the wound; the appearance of gunpowder in this manner would indicate that the weapon was fired from a distance of 12 to 18 inches from the victim's head; he determined that the trajectory of the bullet was slightly downward; in the course of his internal examination he removed a .22-caliber bullet from a muscle in Dulin's neck; and it appeared that the bullet passed through the most vital areas of the brain, thus causing an instantaneous death.

Patricia Swan and her sister, Catherine Compton, each testified that their father, William Dulin, owned two billfolds and an inexpensive gold-plated money clip. Their father would ordinarily keep one of the billfolds and the money clip in his pants pocket. They went through their father's personal effects and could not find either of the two billfolds or his money clip. Swan testified that her father owned a BB pistol and that he usually had it hanging on the living room wall. However, she had not been able to find the pistol since she entered her father's house on November 8, 1988. Compton testified that she could not find her father's checkbook, but she did find some counter checks. See Webster's Third New International Dictionary 519 (1986) (a counter check is "a blank check obtainable at a bank esp. to be cashed only at the bank by the drawer").

Richard Hill, an employee of the Iroquois Farmers State Bank, testified that on November 8, 1988, he was working in the back room of the bank. He looked out the window of the bank and noticed a dark-colored, General Motors automobile. There were two individuals in the car--a bearded man with dark bushy hair and a blond-headed woman. Vesta Metz, another bank employee, testified that on November 8, 1988, a man, whom she identified from a photograph at trial as Gullion, came into the bank wearing a shirt with the name "Chuck" and "K & C Auto" embroidered on it. He attempted to cash a yellow counter check in the amount of $4,050. The check had Dulin's signature on it but she recognized that the signature was not in Dulin's handwriting. She advised him that the check could not be cashed and that Dulin was dead. The man took the check and left the bank.

Gayle Potter, a codefendant who, at the time of defendant's trial, was awaiting trial on charges of murder, armed robbery, forgery, and attempted theft due to her involvement in Dulin's death, provided the following background information: she became acquainted with Dulin through her mother because her mother was Dulin's housekeeper and her mother also provided nursing care for his wife; Potter considered Dulin a friend and, over a two-year period, she had borrowed money from Dulin four times; on one occasion in August of 1988, defendant went with her to Dulin's home when she borrowed some money; she admitted to being a drug dealer and that Steve Poll, a Mobil gas station employee, would "fr...