APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE BUA DELIVERED THE OPINION OF THE COURT:
Defendants, Julius Barnes, Silas Jayne, and Joseph LaPlaca were indicted for the murder of George Jayne (Ill. Rev. Stat. 1969, ch. 38, par. 9-1) and for conspiracy to commit the murder of George Jayne (Ill. Rev. Stat. 1969, ch. 38, par. 8-2). On April 28, 1973, following a jury trial in the Circuit Court of Cook County, defendant Barnes was convicted of murder and defendants Jayne and LaPlaca were convicted of conspiracy. No other verdicts were returned by the jury. Defendant Barnes was sentenced to 25 to 35 years imprisonment and defendants Jayne and LaPlaca were each sentenced to 6 to 20 years in the penitentiary. From the judgments of conviction and the sentences thereon, the defendants appeal. No issue is raised regarding the sufficiency of the indictments.
The major issues presented for review, and applicable to all defendants unless otherwise specified, are: (1) whether the guilty verdicts of defendants Jayne and LaPlaca are legally consistent and responsive to the issues at trial; (2) whether the court erred in instructing the jury as to the elements of conspiracy; (3) whether the court erred in denying the motions for severance of defendants Jayne and LaPlace; (4) whether it was error to admit into evidence post-conspiratorial statements by defendant Barnes; (5) whether the court properly denied defendant Barnes' motion to suppress his confession; (6) whether it was error to admit into evidence proof of prior threats made by defendant Jayne; (7) whether the court erred in allowing proof of the corpus delicti of the murder and the facts of death from different witnesses; and, whether certain prosecutorial references during examination of witnesses as to the cause and fact of death were so prejudicial as to constitute reversible error; (8) whether the court properly applied People v. Nuccio (1969), 43 Ill.2d 375, 253 N.E.2d 353, and People v. Burbank (1972), 53 Ill.2d 261, 291 N.E.2d 161, in sustaining prosecution objections to certain questions propounded a State's witness on cross-examination; (9) whether it was error to allow the State to impeach a witness when the witness had previously testified on behalf of the prosecution; (10) whether the trial court improperly admitted into evidence certain expert testimony regarding the growth potential of corn; (11) whether the court erred in denying defendants Jayne and Barnes' section 72 petition (Ill. Rev. Stat. 1969, ch. 110, par. 72) seeking an evidentiary hearing on the issues of the possible use of illegally seized wiretapping evidence against them and on the purported suppression of evidence favorable to them by the prosecution; and, finally, (12) whether defendants Jayne and Barnes were respectively proved guilty of conspiracy and murder beyond a reasonable doubt.
At approximately 8:15 p.m. on October 28, 1970, George Jayne was shot and killed. The incident occurred while the deceased sat in the basement of his home, located in the Inverness section of Palatine, Illinois, playing cards with his wife, Marian, his daughter, Linda Wright, and his son-in-law, Mickey Wright. Earlier in the evening the family had gathered to celebrate George Jayne, Jr.'s 16th birthday.
Officer Michael McDonald of the Palatine Police Department was the first officer to arrive at the scene. Officer McDonald testified that he proceeded to the basement and observed the victim lying on the floor in a pool of blood. He attempted mouth-to-mouth resuscitation and heart massage. Shortly afterwards, a doctor and ambulance arrived and removed the victim from the basement. At this time Officer McDonald observed a bullet hole in a basement window directly above the card table. He "sealed off" the basement and went outside to inspect the area around the window. There he observed footprint impressions in the grass near the window. He secured the area and remained there until help arrived.
Palatine Police Detective Richard J. Sikorski testified that he arrived on the scene at 10:15 p.m. with a third officer. According to Sikorski, they both observed the foot impressions, which, because of their "larger gait," appeared to be those of someone running "back towards the street."
Early the following morning, Timothy Dixon, a criminalist for the State Crime Laboratory, arrived at the Jayne residence. Dixon took photographs of the area, and found fabric impressions and a partial fingerprint in the mud near the window through which George Jayne was shot. However, the fingerprint later proved insufficient to either identify or eliminate the maker.
At trial, the State called Melvin Adams, an accomplice to the murder who had been granted immunity from prosecution. Adams testified that in November 1969, while employed by Darling & Co. in Chicago, he met with Edwin Nefeld at the Hub Restaurant, in Markham, Illinois. Nefeld was an officer of the Markham Police Department and the owner of the South Suburban Auto Shop. During their conversation, Nefeld told Adams that he had been hired to kill a man but that he could not locate him. Believing that Adams had "syndicate connections" Nefeld asked him if he knew any "hit men." Adams replied that he did not know any "hit men," but with further details he might agree to make the "hit" himself. Nefeld told him that it was Silas Jayne who wanted the "hit" made, and he explained who Silas and George Jayne were. Adams agreed to make the "hit" if he could talk to someone first. About one week later Nefeld called Adams to tell him he had arranged a meeting with "Si's man." After meeting at the Hub Restaurant, Nefeld and Adams went to the Flare Restaurant about a mile away. There, Nefeld introduced Adams to defendant Joseph LaPlaca. They discussed the details, including the existence of a feud between the brothers. Before agreeing to take the "hit," Adams requested "front money." LaPlaca told him that because "Si had given front money before to some other guy * * * [who] had run out on him * * *" none would be forthcoming. Adams and LaPlaca then agreed to the sum of $10,000 as a "reasonable price" for killing George Jayne. (Nefeld subsequently was indicted for conspiracy and pleaded guilty thereto.)
Several days later, Adams met LaPlaca at a prearranged site in Elgin. LaPlaca drove Adams around the area, pointing out places George Jayne frequented. Adams and LaPlaca together made a total of approximately six such trips to familiarize Adams with the area. In February 1970 Adams began making the trips alone.
In either late February or early March 1970, LaPlaca, at Adams' urging, arranged a meeting with Silas Jayne. The meeting took place in the parking lot of the Blue Moon Restaurant in Silas Jayne's car. According to Adams, Silas told him he had had other men on the job, that he had been trying for 10 years to kill his brother, and that there would be two other "hits" after George. Silas also promised that Adams would always be working for him, and that he would provide everything Adams would "* * * need, you know, a string of lawyers, money, anything." At the meeting, Adams suggested George's house as the best location for the killing, and that, if necessary, he would kill any witnesses. Jayne then supplied Adams with a .38 revolver and a .30 Enforcer and two ammunition clips. Jayne told Adams he had filed the serial numbers off of the .38 so that "you don't have to worry about it," but that if Adams used the .30 Enforcer, "make sure you get rid of it" because it could be traced to him.
Thereafter, Adams continued his trips to the Elgin area in search of George Jayne. Occasionally he would meet with LaPlaca. They would discuss the progress being made, and LaPlaca would reimburse Adams for his toll and gas expenses, and collect the receipts for the same. Fearing Adams' car, a 1969 white over red Ford LTD, would be spotted and traced, LaPlaca, on approximately 15 occasions, provided Adams with rental cars from an area dealership.
In April 1970 Adams and LaPlaca decided to travel to out-of-State horse shows in their efforts to locate George Jayne. George and Silas were rivals in the horse show business, wherein horses are trained and presented at shows throughout the country. Witnesses testified at trial that prize money is awarded at the shows, and that there is a lucrative market for championship horses.
Thereafter, Adams and LaPlaca flew to Texas where they observed George at a horse show in San Antonio. Two weeks later, both men drove to New Orleans in Adams' car for another horse show. They registered in a motel, Adams as "Merle Evans" and LaPlaca as "Joe Donato." Adams rented a car in his own name, and they attended the show. Again Adams was unable to make the "hit." LaPlaca flew back to Chicago and Adams drove.
In June 1970 Adams told LaPlaca he wanted to get out of the "hit." LaPlaca told him Silas would go to $20,000, and Adams continued his search for George.
In July 1970 Adams told LaPlaca the job would require two men. LaPlaca, after checking with Silas, agreed and raised the price to $30,000 for the "hit." Thereafter, for $10,000, Adams recruited defendant Julius Barnes, a fellow employee at Darling & Co., whom he had known for approximately eight years, to make the "hit."
Driving a rental car obtained from LaPlaca, Adams and Barnes made several trips to the Inverness area. On the second trip, after parking near the George Jayne residence and viewing the house, Barnes told Adams they would need a high power rifle. When LaPlaca could not obtain one, Adams mentioned the fact to his girlfriend, Patricia Farmer (later his wife). At trial, Patricia testified that she was able to obtain a .30-06 Savage rifle with a scope from Officer Mike Vest of the Markham Police Department. She knew Vest from her job as a waitress at the Hub Restaurant, and she told him she was going on a hunting trip. She turned the rifle over to Adams in mid-August 1970.
When shown the rifle, Barnes asked Adams whether or not the scope had been "zeroed in" (i.e., aligned on a proper angle with the barrel), which it had not.
Adams subsequently met LaPlaca and Silas Jayne at his farm office. Jayne gave Adams a box of .30-06 shells, and additional ammunition for the .30 Enforcer and the .38 revolver. Adams and LaPlaca then drove to a cornfield which, to Adams, "looked like the back of Si's place," for target practice. Adams testified that the corn looked as if it had been cut down, with stubs standing about two feet high.
Using either a rented car from the local agency or Adams' own car, Barnes and Adams continued their trips to the Inverness area throughout September and October 1970. One night in September, while armed, Barnes and Adams approached the Jayne house. While returning to their car Barnes was attacked by a neighbor's dog, causing him to drop the .38, which they never recovered.
At 5:30 p.m. on October 28, 1970, Adams, driving his car, picked Barnes up at his home on Chicago's south side. They arrived in Inverness at 6:30 or 7 p.m. It was "too light out," so they drove to a coffee shop in Palatine that they had frequented on previous trips.
After finishing their coffee they drove back to the Jayne house and parked the car. Barnes went up to the lawn, stayed about 15 seconds and returned to the car. He said he saw somebody there, and they should drive to the other side of the house. Adams agreed because "some kid went by us on a motorbike * * * and I think he saw us."
At trial, Robert Morris testified that at approximately 8:10 p.m. on October 28, 1970, while riding his motorbike, he passed an auto parked on Banbury Drive. The car appeared to be red, and Robert noticed a white male with sideburns and glasses inside the car. He said the first three digits of the license plate appeared to be 9, 3, and 6. (Photographs later admitted into evidence show Adams' car license plate to have been 996880.) At the time, Mr. Morris was a high school student and a 13-year resident of Palatine. Also, at about 8:15 p.m., Mrs. Patricia McCoy, a resident of Banbury Road, in Inverness, noticed a car parked on nearby Tweed Street. The car was a red Ford with a white hard top. Although she did not see the driver's face, she noticed that he was a white male, with short, dark, and curly hair.
After pulling around to the other side of the house, Adams raised his auto's hood to avoid any suspicion from passing motorists, and Barnes, armed with the .30-06 rifle, headed for the house. Adams observed Barnes "crouched" near the basement window of the home for six or seven minutes. Barnes brought the rifle to his shoulder several times, and then Adams saw the flash as the gun was fired. Adams observed Barnes return to the car, where Barnes told him "I got him dead center, it looked like he fell over." Adams drove Barnes home and gave him the .30-06 murder weapon and the Enforcer, telling Barnes to "get rid of them."
After dropping Barnes off, Adams drove to Markham, and phoned LaPlaca at 9:45 p.m. to tell him the job was done and make arrangements for the payoff.
Around 4 p.m. on October 29, 1970, Adams met with LaPlaca at the "Stone Shop" (Weidinger Lapidary Supply Store) in Homewood, Illinois. They proceeded to LaPlaca's car, where he paid Adams $15,000 and promised the rest the following day. On October 30, 1970, Adams met Barnes at Darling & Co., and paid him $10,000, and promised that $2,500 more would be forthcoming. That same afternoon Adams and LaPlaca met at the Aurora Holiday Inn. LaPlaca paid the remaining $15,000 and told Adams to get rid of his car and buy a new one as it had been spotted. The following Monday, Adams drove to Barnes' house and paid him the $2,500 he had promised.
During the first week of November 1970, a fellow employee informed Adams that the police were taking pictures of his car. On November 10, 1970, Adams and Pat Farmer were stopped, but not detained, by agents of the Illinois Bureau of Investigation (I.B.I.). Later that day I.B.I. agents again stopped the couple. They asked to see Pat's purse, wherein they found $3,800. This money was confiscated and the two were taken to the Palatine Police Station for questioning about the Jayne murder. They both denied either knowing LaPlaca or having any involvement in the murder. Following their release, Adams turned $10,000 over to James Shannon, owner of the Hub Restaurant, for safekeeping. Adams subsequently instructed Shannon's girlfriend to turn the money over to an attorney.
On December 3, 1970, police investigators picked up LaPlaca at his home and took him to the sheriff's substation in Niles. There LaPlaca denied knowing Adams. LaPlaca subsequently made the same denials before the grand jury.
Between October 1970 and May 1971, the I.B.I. kept Marian Jayne informed as to the status of its investigation. Through the I.B.I. she made contact with Edwin Nefeld. Nefeld refused to tell her anything about the murder of her husband. On May 17, 1971, accompanied by agent Hamm of the I.B.I., she made contact with Patricia Farmer, who had recently married Adams. The two women talked alone, with Marian Jayne trying to persuade Pat Adams to tell what she knew about the murder. Mrs. Jayne, unknown to the I.B.I., showed Pat $25,000 and intimated that it was hers if she would tell what she knew. Pat said to come back in an hour and talk to Mel. Marian returned and talked to Mel at the Hub for 15 to 20 minutes. He agreed to meet later at his apartment and speak to I.B.I. agents. Later that night the agents, Adams, his attorney, and Marian met and arranged a meeting with the State's Attorney's office the next day to discuss immunity. After returning to the I.B.I. headquarters, Marian phoned Adams who agreed to meet her later that night without his attorney. During their conversation at Mel's apartment, he revealed the details surrounding George Jayne's murder.
On May 19, 1971, having turned "State's witness," Adams phoned Julius Barnes at his home. The call was made from I.B.I. headquarters. The two discussed "Si's" concern over recovering the guns in Barnes' possession. They agreed to meet later that day in the Zayre parking lot across from Darling & Co. Subsequently, the agents placed a transmitter on Adams and he drove to the meeting, which was both observed and recorded by I.B.I. agents. During their conversation, Barnes admitted to Adams, in reference to the killing, that he "aimed for the button, but I got him [George] dead center." Barnes also agreed to perform other "hits" for Silas; asked Adams if Silas could get him a silencer for the next job; admitted kneeling near the basement window in a pair of ribbed trousers he kept in his locker at work; and arranged to turn over the weapons to Adams that night. Thereafter, at 11:45 p.m. Barnes, under surveillance by I.B.I. agents, turned over the weapons to Adams. The agents photographed the events, and the photographs were later admitted into evidence. The agents, however, overheard none of the conversation, as Adams' transmitter had malfunctioned.
At 8 a.m. on May 22, 1971, Barnes was arrested and charged with murder. After being taken to I.B.I. headquarters in Chicago, Barnes was introduced to Matthew Walsh, who identified himself as an Assistant State's Attorney. Mr. Walsh began questioning Barnes, after first advising the suspect of his rights, and receiving Barnes' acknowledgment that he understood all of his rights. Mr. Walsh testified that Barnes initially denied any involvement in the murder, but admitted possessing the guns at a prior date. Barnes said he had purchased the guns in June, 1969, from a "white boy" on Maxwell Street, but later changed his story, claiming to have obtained the guns from two ...