APPEAL from the Circuit Court of Fayette County; the Hon. PAUL
M. HICKMAN, Judge, presiding.
MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Rehearing allowed and opinion modified July 8, 1977.
Following a jury trial, defendant James Cole was found guilty of two counts of murder, two counts of concealment of homicidal death, and one count of obstruction of justice. The court sentenced him to 14 to 28 years on each count of murder, from two to six years on each count of concealment of a homicidal death, and from one to three years for obstruction of justice, all sentences to run concurrently.
On appeal, defendant presents the following issues for review:
1. Whether his Sixth Amendment right to compulsory process was denied by virtue of the trial court's ruling, on the State's motion, precluding defendant from calling his two co-defendants to testify;
2. Whether the State failed to establish beyond a reasonable doubt that defendant was accountable for the murders of Larry Murray and Danny Cade or for the concealment of these homicides, and further failed to establish that obstruction of justice had been committed;
3. Whether the prosecutor's closing argument was improper and prejudicial because:
(a) he shifted the burden of proof to defendant by improperly commenting upon the defendant's failure to introduce into the evidence statements made by two other defendants who were being tried separately thereby creating the impression that these statements could have been introduced and, by improperly and inaccurately suggesting to the jury that they could infer these statements would be adverse to defendant;
(b) he misstated the law of accountability in saying that mere presence and failure to act was sufficient to find defendant accountable;
4. Whether the trial court erred in refusing to give the jury the second paragraph of the Illinois Pattern Jury Instructions (IPI), Criminal, No. 3.02, pertaining to circumstantial evidence, where the proof of guilt was entirely circumstantial;
5. Whether the trial court erred in giving seven specific guilty verdict forms and only one general not guilty form.
On the afternoon of July 15, 1975, two fishermen discovered two bodies floating in the Kaskaskia River. The bodies were wired together and secured to a concrete block. Advanced decomposition precluded visual identification of the bodies. Upon a dental examination, however, the victims were identified as Larry Murray and Danny Otto Cade. Autopsies revealed the cause of death to be multiple, severe blows to the head with a blunt, hard instrument. The jaw bones of each victim had been broken into several pieces.
The fatal beatings occurred at the Schenker farm southeast of Vandalia, Illinois, during the early morning hours of July 11, 1975. The decedents suffered death when they were bludgeoned, their clothing searched and then their bodies were put into the trunk of a car. The evidence indicates that the victims remained alive in the trunk for a short time. The bodies were later deposited in the Kaskaskia River.
There is no dispute that defendant was present when the fatal blows were administered. Nor was it disputed that afterwards he drove Larry Murray's car away from the Schenker farm to a spot on old Route 51, south of Centralia. There he abandoned the car, with the keys in the ignition. The car was left unlocked on the edge of the highway where the police discovered it two hours later.
The events leading up to the killings and disposal of the bodies were as follows. One Michael Davis, decedent Larry Murray and defendant were all involved in illegal drug activities. Larry Murray was Michael Davis' supplier for drugs that Davis sold in the Vandalia, Salem, and Centralia areas. In turn, defendant, who had lived in both Salem and Centralia, helped Davis sell marijuana and THC, a controlled substance, in these areas in exchange for which he was supplied with drugs for his personal use. Defendant testified that during June and July of 1975 he had been using marijuana and THC.
During the three days before the killings defendant spent much time in the company of Davis and Allan Richards. On Tuesday, July 8, defendant and his brother, Buiel, visited Michael Davis' trailer. The brothers returned to the trailer later and spent the night there. The evidence shows that they were supplied with all the marijuana they wanted during that afternoon and evening. The next morning the brothers separated. Defendant hitch-hiked to Ron Lambert's house in Patoka. There he obtained four bags of marijuana. Later he hitch-hiked to Fairview Park in Centralia where he met his brother at about 1:30 in the afternoon. Defendant and his brother remained together the remainder of the afternoon and early evening, returning home about eight or nine o'clock.
The evidence is unclear whether defendant spent the early morning hours of Thursday, July 10, at home in bed or elsewhere. The defendant was apparently picked up at his house by Mary and Mike Davis about noon. After dropping Mary off at a laundromat, defendant and Mike Davis met decedent Murray in Vandalia to discuss a drug deal. Defendant and Davis returned to collect Mary and the laundry and then proceeded to the Davis' trailer home. Allan Richards, who was also living at the trailer, came home from work about 4 p.m. In the early evening Michael and Mary Davis, Allan Richards, and defendant drove to Kroger's parking lot in Vandalia. They met David Olmstead who got into the car with them. The car stopped at several homes, at one of which Michael Davis got out and brought back a "brick" to the car. Olmstead testified that Davis said the "brick" was to weigh down the car. At approximately 8:30 p.m. Michael Davis drove to the farm of Randy Chatham. According to Chatham's testimony, he was visited by Davis, David Olmstead and Allan Richards. He could not recall whether defendant was present at the farm. Olmstead, however, testified that defendant was at the farm with the others. Chatham testified that Michael Davis asked him for a piece of pipe or a breaker bar. David Olmstead also reported a conversation about a breaker bar. Olmstead could not remember whether defendant was present when the request for the pipe or breaker bar was made. Defendant could not remember whether he was present or not during this visit to the Chatham farm. Apparently, Mary Davis did not accompany the others to the Chatham farm. The group remained at the farm for about 30 minutes and then returned to the Davis' home.
The group visited Mike Davis' trailer for about 15 minutes and, now accompanied by Mary Davis, drove around town. They stopped at several houses. At the home of Bob Davis, a relative of Mike Davis, Mike got out and came back to the car carrying a large concrete block. The group's next stop was at the Kroger parking lot where they dropped off David Olmstead. Olmstead testified that during the five hours he spent with the defendant, defendant smoked four or five marijuana cigarettes, but otherwise acted normally. Defendant recalled that he had smoked about an ounce of marijuana and taken four THC pills during the afternoon and evening of July 10. At about 10:30 p.m. Michael Davis had a brief conversation with Larry Murray at Kroger's lot and then drove his wife home. Davis, joined by Allan Richards and defendant, returned to the Kroger lot almost immediately. There they met defendant's brother Buiel and several other people. Buiel and defendant had a conversation in the back of Davis' car. Buiel asked his brother to come home, but defendant refused. Just before Buiel left the lot, Ruth Ann Meyer, Michael Davis' sister, and her two daughters approached the Davis car. The time, according to Ruth Ann, was 11:15 p.m. She requested her brother to drive her to Shobonier to find Dale Olmstead. After speaking again with Larry Murray, Davis drove the group to Shobonier, but they were unable to find Dale. On the return trip Davis dropped off Ruth and her daughters at his trailer.
Defendant testified that at various times during the day he had observed Davis place several objects in his car. A large concrete block was placed on the rear floorboard of the car and later moved into the trunk. Defendant also noticed a breaker bar and a quantity of wire. These objects were kept directly behind the front seat. Defendant stated that after taking Ruth and her daughters to Davis' trailer, Davis, Richards and he returned once again to the Kroger lot. He recalled that shortly thereafter, Larry Murray pulled into the lot. Murray was accompanied by one other person. Defendant remembered hearing Michael Davis tell Larry Murray to follow him. Both cars proceeded to the Schenker farm. Davis got out of his car and spoke with Murray. Both defendant and Allan Richards remained in Davis' car and were unable to hear the conversation. Davis returned to his car and with Richards and defendant drove to Randy Chatham's trailer. No one was at home, but Davis got out of his car and returned a few minutes later with an unidentified object which he gave to Allan Richards. The three then drove back to the Schenker farm. Larry Murray and Danny Cade were already there. The headlights of Murray's vehicle were turned off. After turning his headlights off, Davis directed defendant to get some marijuana from the glove compartment. All three alighted from the Davis car. Defendant walked to the back of Davis' car and as he began to roll some marijuana cigarettes, he heard Michael Davis say, "Check." Then he heard a ...