Appeal from the Circuit Court of Sangamon County; the Hon.
William Chamberlain, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 28, 1974.
On June 29, 1970, Robert Russell Dukett and Michael Wayne Dukett, his son, were found guilty in the circuit court of Sangamon County of the armed robbery and murder of a service station attendant. On July 14, 1970, following the jury's recommendation, both defendants were sentenced to death by the trial court. Robert Dukett was sentenced to a term of 25 to 40 years on the robbery conviction and Michael to a term of 15 to 30 years.
The crimes were committed early on December 19, 1969, at an automobile service station located near Route 66 in Glenarm, approximately 12 to 14 miles south of Springfield. The evidence at trial showed that the station attendant, David Burch, had been killed and that $492 and a .12-gauge shotgun had been taken. The victim had a shotgun wound in the right arm and a bullet wound in the head from a .38-caliber revolver.
A pathologist testified that death occurred between 2:00 and 3:00 A.M. The body was found by Anthony Johnson, a motorist, who had stopped for gas. Susan Komar, a ballistics expert, testified that the bullet which killed Burch came from a .38-caliber Iver Johnson revolver which was introduced into evidence by the People. She also testified that wadding and pellets removed by the pathologist from the body had been fired from a .12-gauge shotgun, but that she did not have sufficient physical evidence to form an opinion whether they had been fired from a particular shotgun.
It was shown by the prosecution, and was conceded by the defense, that the defendants, on January 2, 1970, and on December 26, 1969, had possession of the revolver used in the murder, and also that on December 26, 1969, they had the shotgun that had been taken from the service station. There was other testimony that on December 6, 1969, two weeks before the murder, the defendants had a revolver described as similar to the revolver used in the murder.
Henry Shanklin testified for the State that on December 26, 1969, at about 3:15 A.M., he had gone with the defendants to the home of Robert Dukett to pick up a shotgun he had asked to borrow for hunting. The defendants gave him the shotgun, he testified, but before doing so sawed off its barrel and stock with a hacksaw. While at the house the witness observed Michael Dukett take a revolver from his pocket and remove the shells. The witness identified the murder weapon, which was introduced by the People, as the revolver the son had that night. The witness testified further that he had seen the father with that revolver or one like it on December 6, 1969. The witness and the defendants were at the Blue Sapphire, a tavern in Springfield, he stated, when a fight broke out between two other patrons, Blackie Morgan and Joe Wright. He had seen Robert Dukett, with the revolver in his hand, walk over to where the fight was taking place.
Harry Perry, the bartender, also testified to having seen a revolver in Robert's possession that night. Robert had used it to break up the fight, but the witness said he did not have a clear enough view of the weapon to give a closer description of it.
Roxie Grey testified that on the morning of January 2, 1970, she had seen the defendants with a weapon that "looked something like" the murder weapon at Reed's Jewelry Store in Decatur where the witness was employed. As will be explained later, the witness had seen the gun in the course of a robbery committed at the store by the defendants.
James R. Thompson, a police officer of the Decatur Police Department, and Bertha Taylor, of Decatur, testified that the defendants had been found hiding in the basement of the Taylor home on the morning of January 2, 1970, following the robbery at the jewelry store.
Luther Taylor, the husband of Bertha Taylor, testified that he had found a revolver in the coal bin of their basement on the afternoon of January 2, 1970, and that he had immediately informed the police of this. Michael Dukett admitted having left the weapon in the coal bin.
Evidence was also introduced to show that the defendants had a need for money. There was testimony that neither defendant was employed on December 18 and 19, and that Michael Dukett had called his former wife on December 10, 1969, asking unsuccessfully for money. Evidence was also introduced that on December 19, 1969, the defendants had money and purchased a number of items in St. Louis, such as phonograph records, shoes for Michael, and several shirts.
The prosecution introduced evidence of admissions made by Michael Dukett to a cellmate, Richard Curran, during the evening of June 25, 1970. During the cross-examination of Michael Dukett, the prosecutor, after calling the defendant's attention to the testimony of Susan Komar that the shotgun pellets in David Burch's right arm came from a .12-gauge shotgun, asked Michael Dukett: "Did you say to Mr. Curran or in his presence this or this in substance: That Miss Komar was wrong about those shotgun pellets. They weren't .12-gauge shotgun pellets; they were .16-gauge, and I pulled the trigger?" Michael denied making the statement.
Curran, when called as a rebuttal witness for the State, testified substantially that Michael Dukett had said to him: "That it wasn't .12-gauge. I'm sure it wasn't .12-gauge. If anybody knows, I know."
Evidence of another admission Michael Dukett made was brought out by the prosecutor during cross-examination. Michael was asked if he had told Curran on June 29, 1970, that he could drive from St. Louis to Springfield in 55 minutes, to which Michael answered that he had not. Michael Dukett stated Curran had told him that Curran could make the trip in 55 minutes.
Curran testified that he had told Michael Dukett of having driven 110 miles per hour the last time he had driven to St. Louis from Springfield. He said that Michael then asked how long it had taken him to drive there and that is when he responded that he hadn't timed the trip, Michael said, "You could make it in 55 minutes that fast."
Larry Hibbs, who was an inmate of the same cellblock as Michael Dukett and Richard Curran, testified for the defense that he heard all conversations between Michael and Curran the evening of June 25, 1970, and that Michael did not make the admissions in question.
Robert Dukett did not take the stand but Michael did testify. Michael admitted having the murder weapon on December 26, 1969, and January 2, 1970, and acknowledged that he had left the revolver in Luther Taylor's coal bin. He also admitted sawing off the barrels and stock of the shotgun, as Shanklin had testified, but he said he had done so at the request of Shanklin.
Michael claimed, however, that he and his father did not have the weapons until December 22 and 23, 1969, when they were given them by Blackie Morgan in Chicago. Michael testified that Blackie was an acquaintance whom they had driven to Chicago as a favor, and that he had not seen Blackie since December 23, 1969. Other testimony was introduced that Morgan had died in New York on March 25, 1970.
Testifying in regard to the events of December 6, 1969, Michael stated that he and his father had met Blackie and Blackie's girl friend, Rose Wright, outside the Blue Sapphire and that Blackie had handed him a revolver similar in appearance to the one Blackie gave him on December 23, 1969. Michael was not certain it was the same weapon.
Later in the evening of December 6, when a fight between Blackie Morgan and Joe Wright began, Michael gave the revolver to his father, who moved to where the men were fighting. Michael did not observe what then happened, he said, but he observed that the fight stopped and he saw his father return the weapon to Blackie.
Rose Wright was a rebuttal witness for the State. She stated that she did not see either a revolver or a shotgun in Blackie's possession on December 6, 1969, but she testified that she had seen a revolver in his possession in January, 1970. She also testified that Blackie was in Chicago between December 15, 1969, and December 20, 1969, but she acknowledged on cross-examination that she could not be certain that he did not visit the Springfield area during that period.
Joe Wright testified for the People that he had been involved in the described fight with Blackie Morgan, that Blackie had struck him in the face with a shotgun, and that Robert Dukett had a revolver which he used to break up the fight. Wright was unable to describe or identify the weapon.
Testifying to the defendants' actions on the night of December 18-19, 1969, Michael stated that he and his father had been "bar hopping" in St. Louis and that after leaving a Carioca Bar at about 1:10 to 1:15 A.M., they purchased a bottle of wine from a nearby liquor store.
Robert Ruggens, the owner of a liquor store in St. Louis, testified that Michael had come to his store at about 1:10 to 1:15 A.M. on December 19, 1969, and that he had remained long enough to purchase a ...