People v. Duncan

Citation124 Ill.2d 400,125 Ill.Dec. 265,530 N.E.2d 423
Decision Date20 October 1988
Docket NumberNo. 62199,62199
Parties, 125 Ill.Dec. 265 The PEOPLE of the State of Illinois, Appellee, v. William DUNCAN, Appellant.
CourtSupreme Court of Illinois

Ramsey Clark, Lawrence W. Schilling, Peter B. Meadow, New York City, Louis F. Pignatelli, Rock Falls, for appellant.

Neil F. Hartigan, Atty. Gen., Shawn W. Denney, Sol. Gen., Terence M. Madsen, David E. Bindi, Asst. Attys. Gen., Chicago, for the State.

Justice STAMOS delivered the opinion of the court:

On remand, we are again asked to decide whether the trial of defendant, William Duncan, should have been severed from that of his codefendant, Perry Olinger, because testimony about statements by Olinger was admitted although Olinger himself did not testify and thus was not subject to cross-examination regarding the statements. We hold that severance should have been ordered.

Relying partly on Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, this court previously reversed defendant's convictions and remanded for a new trial. (People v. Duncan (1987), 115 Ill.2d 429, 106 Ill.Dec. 1, 505 N.E.2d 307.) After the decision was filed, the case of Richardson v. Marsh (1987), 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176, was decided, which resulted in a limiting interpretation of Bruton. Thereafter, the Supreme Court of the United States granted the People's petition for a writ of certiorari, vacated our judgment, and remanded this cause to us for further consideration in light of Richardson. (Illinois v. Duncan (1987), 484 U.S. 806, 108 S.Ct. 53, 98 L.Ed.2d 18.) Such a remand may present us with a suggestion of the Court's tentative views but affords us ample opportunity to demonstrate why our original disposition was proper. See R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice § 5.12, at 277, 279-80 (6th ed. 1986); 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice & Procedure § 4021, at 689-91 (1977), at 566-67 (Supp.1987); Hellman, "Granted, Vacated, and Remanded"--Shedding Light on a Dark Corner of Supreme Court Practice, 67 Judicature 389 (1984).

Upon further consideration, we adhere to our previous views, again reversing and remanding for the reasons that follow. We briefly again set out the facts of the case that underlie our reasoning. They are more fully summarized in our original opinion (115 Ill.2d 429, 106 Ill.Dec. 1, 505 N.E.2d 307).


Defendant was indicted with Olinger in the circuit court of Whiteside County for crimes of murder, armed robbery, armed violence, and conspiracy (Ill.Rev.Stat.1981, ch. 38, pars. 9-1, 18-2, 33A-2, 8-2). A jury found the defendants guilty on all counts. Defendant Duncan was sentenced to life imprisonment on the murder counts and 10 years' imprisonment for armed robbery. The circuit court vacated his other convictions. (Olinger was sentenced to death, and we affirmed on direct appeal in People v. Olinger (1986), 112 Ill.2d 324, 97 Ill.Dec. 772, 493 N.E.2d 579, cert. denied (1987), 479 U.S. 1101, 107 S.Ct. 1329, 94 L.Ed.2d 180.)

At the joint trial, Olinger did not testify. Defendant complains that two witnesses' testimony regarding alleged out-of-court statements by Olinger, though properly inculpatory of Olinger, had the effect of inculpating defendant as well because the jury was likely to consider the testimony improperly against him.

The first attribution of statements to Olinger, and their context, occurred as follows.

A witness, Edward Stalder, testified that two nights before the murders, Olinger had approached him about combining to take over the illegal drug traffic in the local area. According to Stalder, Olinger had proposed that in order to seize control of the traffic, they should steal drugs and money from "Jim Adams and a Bill" and "make sure there wasn't [sic ] any witnesses left." (One of the subsequent murder victims was James Adams, and it was in Adams' house that defendant, William Duncan, was found apparently asleep when Adams' body was discovered.) Stalder also testified that Olinger later repeated his proposal for taking over the drug traffic and that Olinger said that he would obtain the required drug stock from someone who would bring it back from Kansas City.

There was substantial testimony that defendant and Adams had jointly engaged in illegal drug traffic and had purchased drugs from a Kansas City dealer with whom defendant was acquainted. Defendant and two other witnesses also testified that Olinger spent time with defendant in Adams' house on the night of the murder, both while Adams was on the premises and later while Adams was away to sell some drugs at the residence of Randolph Stralow. Stralow testified that Adams received four telephone calls from defendant while Adams was at Stralow's house; on the basis of Adams' alleged report of their contents and reaction to them, the People were later to argue that the calls constituted an attempt to lure Adams home, where he could be killed. Defendant testified that he and Adams had been awake for three days and that, several hours after Adams left for Stralow's residence, defendant took a sedative to bring on sleep, and the next thing he knew was when Adams' friend Tina Taber awakened him to tell him that something was wrong with Adams, whose body was lying on his kitchen floor.

It was the People's trial theory that, after Stalder declined Olinger's proposal, Olinger made the desired deal with another murder victim, Gordon Stevens, then realized upon talking with defendant at Adams' house that he could make a better deal with defendant; did so; murdered Stevens (and the woman with whom he lived) to terminate the first deal; and then, with defendant as his accomplice, murdered Adams when Adams returned to his house, where Olinger and defendant were waiting.

The second attribution of a statement to Olinger came when a witness, Patty Doyle, testified that Olinger had told her that Adams had told him that Adams had left all of Adams' cocaine at the Stralow residence. Since there was testimony that Adams was at the Stralow residence immediately before returning home and being murdered, this tended to show that Olinger, who was placed by testimony at Adams' residence at least while Adams was away, had remained at the Adams' residence and had talked with Adams upon the latter's return.

Earlier in Stalder's testimony, the court had instructed the jury not to consider Olinger's out-of-court statements against defendant. However, the instruction was When Doyle testified about Olinger's statement that Adams had said he had left the cocaine at Stralow's residence, counsel for both defendants objected on hearsay grounds. The court overruled the objection but instructed the jury to consider the statement only in connection with Olinger's guilt or innocence but not as to defendant.

[125 Ill.Dec. 268] not repeated when Stalder actually testified as to the Olinger statements about a proposal to take over drug traffic.


In our previous opinion (115 Ill.2d at 443-44, 106 Ill.Dec. 1, 505 N.E.2d 307), we considered whether the Olinger statements to which Stalder and Doyle testified were sufficiently inculpatory of defendant to warrant examination under Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. We concluded (1) that the statements to which Stalder testified, about a plan to take over the drug traffic, were so inculpatory of defendant, in light of the People's other evidence and of their own implications, that their production at defendant's trial, without an opportunity for him to cross-examine their alleged maker as to whether defendant had conspired with the maker to control the drug traffic, violated defendant's constitutional right of confrontation and (2) that fundamental fairness required a new trial of defendant. To support our conclusion, we cited Bruton. However, we found that Doyle's testimony about the cocaine's having been left at Stralow's house was not forbidden by Bruton, since even when considered with the other evidence it did not implicate defendant. 115 Ill.2d at 444, 106 Ill.Dec. 1, 505 N.E.2d 307.

A. Bruton

and Richardson

Although it is often reasonable to assume that a jury has followed a trial judge's limiting instructions regarding evidence admitted for one purpose but not for another, "there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations.]" (Bruton, 391 U.S. at 135, 88 S.Ct. at 1627, 20 L.Ed.2d at 485.) Bruton thus could not "accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination" in a case where a nontestifying codefendant's "powerfully incriminating extrajudicial statements" of doubtful credibility were introduced in a joint trial, even though the jury was instructed to disregard the statements in determining the defendant's guilt or innocence. Bruton, 391 U.S. at 124-25, 135-37, 88 S.Ct. at 1621-22, 1628, 20 L.Ed.2d at 478-79, 485.

Bruton has now been given new meaning by the decision in Richardson v. Marsh (1987), 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176. In Richardson, the Court held that a defendant's Federal constitutional right of confrontation (U.S. Const., amends. VI, XIV) is not violated by the use at a joint trial of a nontestifying codefendant's confession, although the defendant is linked to the confession by other evidence, when the confession is redacted to eliminate even anonymous references to the defendant and when the jury is properly instructed not to use the confession against the defendant. Richardson, 481 U.S. at 211, 107 S.Ct. at 1709, 95 L.Ed.2d at 188.

Fundamental to the Court majority's reasoning in Richardson was its view that, whereas Bruton teaches that a jury cannot be assumed to have...

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