Appeal from the Circuit Court of DuPage County; the Hon.
WILLIAM J. BAUER, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.
Defendant, Jack W. Richards, was indicted for the murder of his wife; a jury found him guilty and recommended the death penalty. The court entered judgment upon the finding of guilt, but sentenced defendant to a term of 99 to 150 years.
The appeal raises issues of the validity of the indictment, the sufficiency of the evidence, and claims prejudicial pretrial and trial errors. Error is also charged in the failure to grant a new trial on purported newly-discovered evidence. In any event, it is urged that the sentence is excessive.
The indictment charged, in Count I:
". . . that on or about the 3rd day of February, A.D. 1967, at and within DuPage County, Illinois, JACK W. RICHARDS committed the offense of MURDER in that he, without lawful justification, and with intent to kill LEONE V. RICHARDS, caused her to remain within a garage which became filled with carbon-monoxide gas, thereby causing the death of said LEONE V. RICHARDS, in violation of Illinois Revised Statutes 1965, Chapter 38, Section 9-1(a) (1). . . ."
and, in Count II, charged the defendant with the murder in that he:
". . . without lawful justification caused LEONE V. RICHARDS to remain within a garage which became filled with carbon-monoxide gas knowing that such an act creates a strong probability of death and did cause the death of said LEONE V. RICHARDS, in violation of Illinois Revised Statutes 1965, Chapter 38, Section 9-1(a) (2). . . ."
Robert P. Troy, a police officer and State's witness, testified that he arrived at the defendant's home at about 10:00 p.m. on February 3, 1966, as the result of a radio communication. Defendant and a neighbor were at the front door and directed him to the kitchen, where he found the deceased lying on her back on the floor. He described the deceased's clothing, observed that there were no marks on the exposed portion of the body and that the body appeared cold; that one arm was extended to the right side of the face, "up in the air," and was stiff. After aiding in the removal of the body, he returned and examined the garage which was separate from the house.
There was a Ford backed into the garage, the ignition in the "off" position; he started the car and stated that it idled fast. He kicked the gas pedal several times but the idle remained the same. On the seat in the car, he observed some money, a purse-type wallet (later identified as belonging to the decedent), a glove and a remote control garage door opener. He observed that the radiator was warm; that the window on the driver's side was rolled one-third of the way up and the fuel indicator in the car showed there to be approximately a half tank of fuel remaining. The path to the garage from the house had snow and ice on it and he did not know whether it had been shoveled or trod down.
Troy further testified that while he was in the garage, he took the small remote control device from the front seat of the car and accidentally tripped it; the garage door started to come down and the overhead light in the garage went off. He pushed the control three or four times to stop the door from going down, but it did not stop. He found a light switch within the garage, but it did not work; thereafter, he pushed the control-device button again and the garage door went back up and the light went on.
Robert Ryan, then a sergeant in the Elmhurst police department, testified that he accompanied officer Troy to the defendant's residence on February 3rd; confirmed Troy's testimony as to the position of the body and its condition. He drove the defendant and his brother-in-law to the Elmhurst Hospital. When they arrived at the hospital, Ryan testified, the defendant was depressed and upset and he recalled the defendant saying, "Tell me she isn't dead."
At the hospital, Ryan directed Officer Hargraves to bring the defendant to the police station, where he took an oral statement. Ryan testified that defendant told him that he and his wife had gone for a drive in the afternoon; that his wife left the house at approximately 7:00 p.m. to go shopping, and he was downstairs watching television; that he had asked his wife to put their second car, a Dodge, which was parked in the front of the house, in the garage when she returned; that he had worked on the Ford automobile in the afternoon, curing a mechanical problem concerning a loose wire; that later in the evening he had gone to the garage to put the Dodge away when he discovered his wife. He stated that defendant said he found his wife inside of the car, on the floor in front of the front seat, but on cross-examination admitted that the defendant had given him a partial written statement in the station in which he stated that he found his wife lying on the floor.
Sergeant Ryan testified that the defendant stated that he had recently obtained some pills; that while he was traveling, he believed he had discarded some in a toilet bowl in Minneapolis; that he did not know if his wife had taken any of those pills on February 3rd. The Sergeant did not look for the pills. He said the defendant told him the pills were his for a chest cold, and his wife had taken some but he did not know if she had taken any on the particular day of February 3rd.
Sergeant Ryan testified that defendant told him that he had filled the Ford's gas tank the night before, and that the change which was on the front seat was the change he had received from the gasoline attendant.
Dr. Bartley testified that he was a physician on duty in the emergency ward at the Elmhurst Hospital and that he examined Leone Richards upon her arrival on the night of February 3rd. He stated that she was dead on arrival at the hospital, and it appeared that she had been dead at least an hour or two, this conclusion reached on the basis of his observation that her body temperature was slightly diminished, and that this was a wintry evening. He testified that he examined Mrs. Richards' body but did not find any marks, bruises, or lacerations on her head or other parts of her body; that he presumed she died from carbon-monoxide poisoning, based upon the history he received.
Dr. Hubert Swartout, a pathologist, testified for the State that, on the morning of February 4th, he performed an autopsy on the deceased. He confirmed that there were no marks or bruises on the exterior of the body. He diagnosed the cause of death as being from carbon-monoxide poisoning, in view of the color of the skin, the organs, and the muscles which were bright pink, a characteristic of death by this cause. He examined the stomach of the decedent and testified that it was empty; that the emptying time of the stomach varies, and that if a light meal is eaten, it would be empty in two hours, with a heavy meal, in four hours. He testified that it would be fair to say that she had not eaten for at least two hours and possibly as long as four hours. This would be a measurement from the time she died as there are very minimal digestive processes after death, he testified. He extracted a blood specimen from her body at the time of the autopsy.
Dr. Fiorese, Chief of the Bureau of Toxicology, State of Illinois, testified to his findings from the blood specimen of the decedent. The tests that were performed on the blood sample showed that saturation was 85% carbon monoxide in the blood of the decedent. Further tests indicated that Doriden, a sedative, was found in the blood of the decedent, having a concentration of 3.5 milligrams percent. He testified that Doriden starts to produce a sedative effect 15 to 20 minutes after ingestion; that a concentration of 3.5 milligrams percent would produce a coma condition in a little more or less than one hour; that in a small person from 100 to 120 pounds, the concentration of Doriden found in the decedent's blood would probably indicate the ingestion of about 7 tablets. He further testified that, taking into consideration the dimensions of the garage and the specifications of the 1956 Ford automobile, the decedent would have died of carbon-monoxide poisoning within 40 minutes from the time the car was started within a closed garage.
Dr. Westfall, an obstetrician and gynecologist, testified that he had treated Leone Richards with reference to her last pregnancy; that she had delivered a baby boy on December 1, 1966, that he saw her on January 16th, 1967, for her six-week checkup and found her in good physical condition, and that she was approximately 5 feet tall and weighed approximately 110 pounds. The Doctor stated that when Mrs. Richards was in the hospital after the delivery of the baby, she was very concerned over the baby's condition, which was not normal due to a cleft lip. He stated that Mrs. Richards was always quite an apprehensive and emotional woman; however, when he saw her during the January 1967 checkup, she did not have this apprehension. He stated she seemed to be more cool, more resigned, and testified that "she just did not seem to be herself." At the January 16th examination he told her that there should be no problem with the surgical procedure for the cleft lip and, contrary to her ordinary practice, she did not ask a lot of questions about it.
Dr. Messitt, a physician on duty in the Elmhurst Hospital emergency room on January 28, 1967, testified that he saw Mr. Richards at about 11:00 a.m. on that date. Defendant was complaining of a chest cold and cough and the Doctor concluded that defendant had a residual laryngo-bronchitis from an upper respiratory infection that was probably viral in origin. He testified that he prescribed a sulfa preparation, a cough preparation and Doriden. He prescribed Doriden because defendant had asked for something to help him sleep. He wrote a prescription for 14 tablets of Doriden, at a strength of one-half gram, or 500 milligrams. Defendant told him that he had had the complaints for approximately a week and a half to two weeks.
There was testimony that the prescriptions were filled by the pharmacy and picked up by the defendant on January 28, 1967.
A young girl, who was the babysitter for the Richards' children on the night prior to Mrs. Richards' death, testified that neither Mr. nor Mrs. Richards appeared any different to her on February 2nd than they had on any previous occasion.
Geraldine Johnson, a neighbor directly to the south of the Richards' home, testified for the State. She said that she and her husband were social friends of the Richards and that she had been a particularly good friend of the deceased. She had walked by the Richards' home at 8:30 p.m. on the night of February 2nd, noticed that the drapes were drawn and that there were no lights on in the house. She had never seen these drapes closed before. The first thing she did on the morning of February 3rd was to observe the Richards' home to see if the drapes were still drawn; they were. At about 1:00 p.m. she observed the defendant emerge from the front of his home carrying his son, Bart, in an infant seat; he placed the child in the rear seat of the automobile. The defendant then reentered the house and emerged from the front door, helping Leone Richards to the car, which had been backed into the driveway so that the passenger side was towards her house. The defendant walked directly behind his wife, holding her up by placing his hands and forearms under the elbows and forearms of his wife. The witness testified that Mrs. Richards walked very slowly, dragging her feet and that her head was falling forward and remained down while she walked to the car. The passenger door was open and the defendant turned Leone Richards around, with her back to the car, sat her down in the front seat, picked up her feet and placed them in the car. The witness observed that Leone Richards' eyes were closed; that, as the defendant picked up her feet, her head went backward to the top of the seat and remained in that position while within the witness' scope of vision. After the car drove away, Mrs. Johnson immediately called another neighbor, Mrs. Zelinski.
Mrs. Johnson further testified that at about 2:30 p.m. she received a call from Mrs. Zelinski and, after talking to her, Mrs. Johnson called the Richards' home. The defendant answered, she asked to talk to his wife, and he told her that she was resting; Mrs. Johnson asked the defendant to get her up because she wanted to talk to her, and that he said, no, no, no, and that she asked to have Leone call back before the dinner hour.
Shortly after 3:00 p.m., Mrs. Johnson noticed the Ford, the front partially sticking out of the garage; the defendant was working under the hood and under the dashboard while she watched between 3:00 and 4:00 p.m. When her husband came home at 5:00 p.m., she noticed the Richards' garage was closed, that there were no lights in the back of the house at that time; she walked her dog past the Richards' house, observed that the house was still dark and the drapes still drawn, a small stove light was on in the kitchen and there was a light in the basement. She testified that the same conditions existed when she walked her dog at 5:30 p.m., when she looked again at 6:00 p.m. and at 6:30 p.m. on the occasion of another walk with her dog.
At 7:00 o'clock she again walked her dog past the Richards' home and observed the defendant in the driveway. She noticed that the garage door was closed; the defendant was midway between the garage and the rear of the house, walking down the driveway toward the front of the house. At the time, the witness was standing on the sidewalk in the Richards' driveway, in front of the Richards' second car, which was parked in the driveway. When the defendant reached the front of the house, Mrs. Johnson called to her dog; the defendant looked up; Mrs. Johnson called out to him, by name; he did not answer but immediately turned around and ran up the length of his driveway and around the rear of his house, toward his back door. During this time, she did not see the Richards' pet dog.
Mrs. Johnson further testified that, at 7:30 p.m., she and her husband were outside in front of their house. She observed the Richards' front porch light on, a light on in the living room and the draperies open approximately one foot. These conditions were the same at 8:30 p.m. when she passed the Richards' home and saw the defendant, in his living room, pace six or seven times in front of the drapes. At 9:00 p.m. she observed the same thing. At 10:00 p.m. Mrs. Johnson was in the second story bathroom of her home and noticed the Richards' backyard lighted by floodlights. She saw Leone Richards lying on her back in the driveway, her feet toward the door and her head toward the street. The garage door was open and the Ford automobile was backed into the garage. The defendant was facing the street, leaning over Leone Richards' body; he picked her up by the wrists, lifted her back approximately one foot above the ground, and dropped her. He picked her up again in the same fashion and again, dropped her. She testified that defendant looked around after each time he dropped Leone Richards' body. Mrs. Johnson called to her husband, who immediately ran out and around the front of the Richards' home.
Mrs. Johnson testified to a conversation with defendant in her home the next day during which she asked the defendant what had happened; that defendant told her it was an accident; that his wife had been going shopping, she must have been cold and started the engine to warm up in the garage; that she got out of the car to shut the door and must have fallen down and hit her head on the automatic door closer; that he had been down in the basement watching a program with his daughter. She asked him why Leone had taken the Ford when "she hated it so," and he said that the other car wasn't working quite right and he had not wanted her to use it.
Mrs. Pat Zelinski, a witness for the State, testified that she lived across the street and one house north of the Richards' residence and that on February 3rd she was with Mrs. Johnson until about noon. Mr. Richards called about 12:40 p.m. and asked if he could bring his daughter over and have her taken to school by Mrs. Zelinski. This arrangement was made and was not unusual inasmuch as Beth and the witness's daughter went to the same school and took tap dancing lessons together. Mrs. Zelinski took Beth and her daughter to school, picked them up from school and later took them to their tap dancing lesson. She brought Beth back to the Richards' home at about 4:45 in the afternoon.
At approximately 2:30 p.m., she saw the Richards' car drive by her house; it backed up into the Richards' driveway. As the car passed her house, she observed that Leone Richards' head was slumped down; that after the Ford parked in the Richards' driveway (approximately 200 feet from her living room window), she observed defendant help Mrs. Richards out of the car. She thought she saw Mrs. Richards move. She could not tell if they were talking. She testified that the defendant placed Mrs. Richards' arms over the car door and that her forearms extended over the open door; that her head was over the car door and looking downward. Mr. Richards took the baby out of the back seat of the car and into the house, leaving Mrs. Richards in that position. He came out of the house and put his wife's one arm around his shoulder and his arm around her waist. Mrs. Zelinski's view was partially obstructed by the Ford and she could only see the head and shoulders of their bodies, but she saw them proceed to the house; Mrs. Richards' head was forward and it appeared that she walked up the steps and that she was not dragged. Mrs. Zelinski then called Mrs. Johnson.
She further testified that when she returned home from shopping just prior to 7:00 p.m., she observed the Richards' garage door open and the Ford backed into the garage. From her vantage point, which she estimated to be 300, 400 feet away, she saw no light in the garage. She also observed piles of snow, 3 or 4 feet high, along the driveway and the parkway.
Martha MacMillan, employed by an airline and formerly a stewardess, testified for the State concerning her relationship with the defendant. She stated that she first met defendant while attending an airline convention in 1961 and did not see him again until another airline convention in Miami in November of 1966. At that time they went out socially and the defendant told her that he loved her, that he and his wife were getting a divorce and that he wanted to marry her. Shortly after returning to her home in Pittsburgh, she received a telephone call from the defendant, and he continued to call her daily throughout the remainder of December, 1966, repeating that he loved her and wanted to see her. She testified that, by prearrangement, the defendant traveled to Pittsburgh in mid-December of 1966 and that they were intimate. A second meeting was arranged for December 31, 1966, when defendant had a flight; she flew to Omaha, Nebraska, met the defendant at his hotel and they were again intimate. He continued to call frequently during January; two additional prearranged meetings took place on January 17 and January 21, 1967, in Minneapolis, Minnesota, at the defendant's hotel room, where Miss MacMillan stayed.
She testified that, during the conversations in December, defendant had told her he wanted to marry her; in response to questioning, however, she could not remember how many times, but that it was "a lot, but I can't name a specific number." She said that the predominant subject of the January telephone conversations was that defendant was in love with her and that he wanted her to settle down and get married.
The witness further testified that, in the early part of February at 4:00 a.m. one morning, she received a telephone call from defendant wherein he told her there had been a terrible accident and that his wife was dead; that he didn't know whether it was an accident or suicide. Within 24 hours she received another call from the defendant in which he told her that his wife had died of carbon-monoxide poisoning, that "someone had found her in a car, and she was dead." During telephone conversations in February, he told her that he did not know what he was going to do with his children and that he was concerned about how he was going to take care of them.
According to Miss MacMillan's testimony, the defendant came to Pittsburgh to see her in February and stayed at her apartment, asked her to marry him and she said yes. They discussed a ring, and she told him she would like to have an emerald with diamonds on the sides. Toward the end of February, defendant came to Pittsburgh and brought his daughter; both stayed with Miss MacMillan at her apartment. During that stay, she and defendant had "a very bad argument" because defendant looked at some of her personal letters. In March he came to her building, but she refused to see him; the last conversation she had with him was in May when he called her.
Rosemary Davis, an acquaintance of the defendant and his wife for a period of years, testified for the State. She said that, in December and January, she saw the deceased several times and that she saw her about one week before her death; that on all of these occasions, deceased appeared fine and there was nothing unusual about her. She testified to a call that she made to the Richards' home on February 3rd; that when the defendant answered the phone, he told her his wife was resting and he did not want to disturb her. She said that on February 4th she talked with defendant and he said that he had found his wife lying there as he opened the garage door. In the conversation, defendant evidenced concern for his children and stated he did not know what he was going to do with them.
Mrs. Davis' husband, William Davis, testified for the State. His testimony, related to the mechanism and operation of the electronic garage door opener, revealed that it could be activated by an exterior key, by a button in the garage, or by the remote transmitter device; when power to the garage was turned off by an interior switch in the house, the automatic device was inoperable and the door could not be raised without pulling the safety chain, located 6 feet, 6 inches off the ground in the middle of the door. He had demonstrated the operation to Mrs. Richards and told her she should never get in the car, start it, and then open the doors. He confirmed his wife's testimony as to not observing anything unusual about Mrs. Richards prior to her death.
Elmer Andrews, a salesman of Peacock Jewelers, in Oakbrook, Illinois, testified that the defendant came to the store on February 10, 1967, interested in a ruby engagement ring, which they did not have in stock; that defendant returned on February 16th and was shown an $800 ruby ring which he selected; defendant made a $200 down payment. He testified that defendant said he was presenting it to a young lady in ...