People v. Duncan, No. 62199

• Court: Supreme Court of Illinois
• Writing for the Court: WARD
• Citation: 115 Ill.2d 429,505 N.E.2d 307,106 Ill.Dec. 1
• Docket Number: No. 62199
• Decision Date: 30 January 1987
• Parties: , 106 Ill.Dec. 1 The PEOPLE of the State of Illinois, Appellee, v. William DUNCAN, Appellant.

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505 N.E.2d 307 115 Ill.2d 429, 106 Ill.Dec. 1 The PEOPLE of the State of Illinois, Appellee,
v.
William DUNCAN, Appellant. No. 62199. Supreme Court of Illinois. Jan. 30, 1987.
Rehearing Denied March 30, 1987.

[115 Ill.2d 431] Ramsey Clark, Lawrence W. Schilling, Weldon Brewer, New York City, Louis F. Pignatelli, Canal Plaza Office, [115 Ill.2d 432] Rock Falls, for appellant.

Neil F. Hartigan, Atty. Gen., Roma J. Stewart, Sol. Gen., Mark L. Rotert, Chief,

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[106 Ill.Dec. 2] Criminal Appeals Div., Chicago, for appellee.

Justice WARD delivered the opinion of the court:

The defendant, William Duncan, was indicted with Perry 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 and, following a hearing before the court on factors in aggravation and mitigation, Duncan was sentenced to life imprisonment on the counts charging murder and 10 years' imprisonment for armed robbery. The remaining convictions against him were vacated. The appellate court affirmed (133 Ill.App.3d 489, 88 Ill.Dec. 517, 478 N.E.2d 1125), and we granted his petition for leave to appeal under our Rule 315 (94 Ill.2d R. 315).

Olinger was sentenced to death, and his convictions and sentence were affirmed on direct appeal by this court in People v. Olinger (1986), 112 Ill.2d 324, 97 Ill.Dec. 772, 493 N.E.2d 579.

At approximately 10:15 a.m. on May 25, 1982, Tina Taber discovered the body of her boyfriend, James Adams, on the kitchen floor of his home in Rock Falls, Illinois. She testified that she found the defendant in an adjoining room sleeping on a couch. Tabor stated that the defendant did not respond when she called him, but he sat up after she "nudged" him. Taber said that he did not appear to immediately understand when she told him that she believed that Adams was hurt. She testified [115 Ill.2d 433] that he was wearing the same clothes which she had seen him wearing the previous night. Adams' dog was in the room with Duncan, she said, and the animal was acting as if he had been "drugged." She tethered the dog in the backyard, then waited in front of the house with Duncan for the police to arrive.

Later that same morning, Susan Newman discovered the body of Gordon Stevens in the house he shared with Debra Bushman in Sterling, Illinois. Newman testified that she found the front door of the house slightly ajar, though customarily it was kept locked, and she stated that when she entered the house she saw Stevens' body just inside the house lying in a pool of blood. She notified the police, and a short time later Sterling police officer Fred Moore arrived at the house.

Moore testified that he entered the house and found Stevens lying on his back on the living room floor. He discovered the body of Debra Bushman in a hallway just beyond the kitchen. She was lying on her back with her feet propped against a wall. Moore said that there were no signs of forced entry into the house.

Pathologist Larry William Blum testified that Adams died as a result of a "cutting wound" which severed his trachea and transected his jugular vein. However, he said that the victim's vocal cords were not injured. He observed four additional wounds on the neck, though these he described as superficial. Dr. Blum testified that Adams' forehead had five distinct wounds which he said were inflicted with a blunt instrument. He was unable to determine if the wounds to the neck were administered before the trauma to the forehead. Dr. Blum also performed an autopsy on the body of Gordon Stevens; he concluded that Stevens died from a single gunshot wound to the head. He said that when discharged the weapon was held within 6 inches of Stevens' head. The doctor explained that he was unable to fix a definite [115 Ill.2d 434] time of death for either victim, but he said that the extent of rigor mortis and the chemical analyses of body fluids of the victims indicated that they died sometime after midnight but before 11 a.m. on May 25.

William Rouse, the pathologist who performed the autopsy on Debra Bushman, testified that she died from a gunshot wound to the head. Dr. Rouse testified that the fatal shot was fired from less than 3 feet away. He estimated her time of

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[106 Ill.Dec. 3] death as sometime after midnight but before the early afternoon hours of May 25.

There was substantial testimony regarding events of the days preceding the murders. Edward Stalder told of a burglary of the house of Dennis Burris on the night of May 22. He testified that earlier that day he was in a tavern with Olinger and Darrell Onken, and that they agreed to commit a burglary. He said that later that night he broke into the Burris house with Olinger while Onken stood watch outside, and that five handguns, including a .22-caliber magnum pistol, were taken in the burglary. The weapons were put in a burlap sack which was placed in Olinger's pickup truck. Onken substantially corroborated Stalder's testimony, although Onken said that he did not know the contents of the burlap sack. Stalder stated that Olinger kept the .22-caliber magnum and recalled that, while riding with Olinger the next day, Olinger stopped his truck and "did some target practice" from the window.

Stalder testified that, while they were en route to meet Onken the night of the burglary, Olinger proposed that Stalder join him in "taking our control of the drug traffic in the area," and that they steal drugs and money from "Jim Adams and a Bill" and "make sure there wasn't [sic ] any witnesses left." Stalder said that Olinger repeated the proposal after they had dropped off Onken following the burglary, but in both instances he told Olinger that he was not interested. Duncan's counsel[115 Ill.2d 435] asked that the jury be instructed that any statements made by Olinger to Stalder and any testimony regarding the burglary of the house of Dennis Burris be considered only against Olinger and not be considered as evidence against Duncan. The court, having instructed the jury at the outset of Stalder's testimony that Olinger's out-of-court statements should not be considered against the defendant, declined to instruct the jury at that point.

Dennis Burris testified that a few months before the burglary of his home he had used the .22-caliber magnum pistol to shoot two stray dogs on his farm. The bodies of the dogs were exhumed, and James Edward Hamby, a firearms expert of the Department of Law Enforcement, testified that the pellets recovered from the dogs and the pellets recovered from the bodies of Stevens and Bushman were fired from the same gun.

There was evidence that during the two weeks preceding the murders Adams and the defendant had made three trips to Kansas City to purchase cocaine and marijuana from Edward Kline, a drug dealer known by Duncan. On the last trip on May 22, Adams and Duncan bought five pounds of marijuana and Adams bought three and one quarter ounces of cocaine. Adams and Duncan returned to Adams' house on May 24 and "got the word out" that they had drugs for sale.

Among their customers was Merle Merkel, who testified that she bought $1,050 worth of cocaine from Adams at around 9 a.m. on May 24, and that Duncan was in the house when she made the purchase. She said Olinger arrived at the house while she was there. She recalled that he did not have money to purchase cocaine and offered to exchange a .45-caliber gun for a gram of cocaine. Adams did not agree to that proposal. However, there was evidence that later that day Adams accepted a rifle from Olinger as collateral in a cocaine transaction.

Olinger's girlfriend, Rhonda Odquist, testified that [115 Ill.2d 436] she accompanied Olinger to Adams' house between 11:30 and midnight on the evening of May 24, and that she waited 10 or 15 minutes in his truck before Olinger told her to come in the house. Adams and Duncan were in the house when she entered. She stated that most of the time she was in the house she watched television in the living room while Olinger and Duncan talked in the kitchen. She and Olinger left the house around 5 or 5:15 a.m. They arrived at their house around 6:15. Olinger left 20 or 25 minutes later to go fishing, she said, and she went to sleep. The witness next saw Olinger around 9:30 that morning.

Around 9 or 9:30 p.m. on May 24 Patty Doyle injected cocaine with the defendant at Adams' residence. An hour later Duncan

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[106 Ill.Dec. 4] asked Adams for more cocaine, she said, but Adams replied that Duncan already had too much cocaine. Doyle left to go to John's Tavern, one block away, but returned sometime after 11:30 to buy a gram of cocaine. She stated that she saw Rhonda Odquist in Olinger's truck outside the house. The defendant, Adams and Olinger were in the kitchen when she purchased the cocaine, and she told the defendant that she would be back after John's Tavern closed. Olinger's truck was still in the yard when she returned after 1:30 a.m. The lights were on in the house, but no one answered when she knocked at the door.

Doyle related that on the afternoon of May 25 she was with Olinger in a tavern in Morrison. She observed that Olinger was carrying a "wad" of bills. Doyle recalled that while sitting at the bar Olinger told her that Adams had told Olinger that he had left all of his cocaine at Randy Stralow's house. Counsel for both defendants objected on hearsay grounds. The court overruled the objection but...