APPEAL from the Circuit Court of Madison County; the Hon.
MOSES W. HARRISON, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Steve Strubberg, was convicted by a jury of murder and burglary and was sentenced to terms of 75 to 150 years, and six years eight months to 20 years, respectively, for those offenses. On appeal the defendant contends that to his prejudice inadmissible hearsay evidence was admitted, improper cross-examination was allowed and the sentence imposed was excessive.
It is necessary to summarize the evidence presented. At about 8:30 on the morning of February 6, 1976, the body of a 78-year-old woman was found in her home lying on her bed with her skull crushed. Three persons were arrested in connection with the murder, all of whom resided in the same neighborhood as the victim. The three were Steve Strubberg, age 18, John Henderson, age 15, and Jack Robertson, age 14.
Henderson and Robertson, who was Strubberg's brother-in-law, agreed to testify against Strubberg in exchange for the prosecutor's promise not to prosecute them as adults. At trial Robertson and Henderson testified that Strubberg planned the burglary and killed the woman. Strubberg testified that his only involvement was to attempt to "talk them out of it" and when he was informed later that they had beaten the woman and taken her purse in his absence, he went to her house to see if she really was dead.
Jack Robertson testified for the State that Steve Strubberg was married to his sister, Diane Strubberg, and that the couple and their infant child lived in the same household with him and his mother and a second sister. Before Christmas, Robertson had sold greeting cards to the victim and noticed that she had "a lot of money." Robertson, Henderson and Strubberg had discussed ways to get the money from her about two days before the murder.
On the night of February 5, Strubberg called Robertson about midnight asking if he still wanted to break into the woman's house. Robertson replied that he would decide when Strubberg came home. Strubberg returned about 2 a.m. and Robertson told him he wanted to go ahead with the plan. Strubberg asked Robertson to borrow a screwdriver, coat, gloves and hat from Henderson. Robertson called Henderson who agreed to loan the items and Robertson went over to get them. When he returned he and Strubberg went to the woman's house where Strubberg cut the screen door and then used the screwdriver to pry off some pieces of wood and remove a pane of glass on the inner door so he could reach in and unlock it. Strubberg then went into the bedroom carrying Robertson's baseball bat but came back out saying he "couldn't do it" and asked Robertson to hit her. When Robertson refused Strubberg went back in and hit the woman several times. Robertson grabbed the woman's purse and told Strubberg they had to go but Strubberg went back into the bedroom saying that he had to make sure she was dead and Robertson heard him hit her several times more. Robertson then ran back to his house and Strubberg came in five or 10 minutes later.
Robertson took the money out of the purse and threw the purse on the roof. Strubberg took the money saying that he had killed the woman and he deserved it. He asked Robertson to go get the bat which he had left behind but Robertson refused. Strubberg then called Henderson and asked him to go get the bat and also bring back Strubberg's cigarettes and the screwdriver and one glove. Henderson said that he would go after curfew lifted at 6 o'clock.
Henderson came to the Robertson house shortly after 6 a.m. and he and Robertson went to the woman's house, turned on the light, picked up the bat and on the way home found the other items which they brought back to the Robertson home. They took the bat into the bathroom, washed it off and placed it in the utility room. After going home for a few minutes Henderson returned to the Robertson house where he watched television with Robertson until they were arrested at about 10 that morning. During that time the two boys discussed the details of what Robertson and Strubberg had done at the victim's house.
Henderson testified for the State as to his participation in this same series of events. There were some minor differences as to details but the testimony by Henderson was essentially a repeat of what Robertson had said on the witness stand.
Diane Strubberg testified for the defense that when she went to bed at 10:30 or 11 o'clock on February 5, 1976, Steve was out with a friend. When she got up on the morning of February 6 at about 4:45 to feed the baby Steve was there but she did not know what time he had arrived. Sometime later that morning, whether before or after Robertson and Henderson were arrested is not clear, she noticed some "little spots" on Steve's jeans and "threw them in the wash." She replied in the negative to a series of questions asked by the prosecutor as to conversations allegedly had with her sister, Robin Wren, and her mother-in-law, Phyllis Strubberg, about the jeans and the origin of the spots. She also denied having any conversation with Robin Wren in which she reported overhearing Steve admit the killing and that he had admitted it to her.
Robin Wren testified for the State that she was present in the Robertson home when the three boys were discussing a house they planned to rob. She indicated that she had returned to the home on the morning of February 6 and found Diane washing clothes. Diane had drawn her attention to some spots on a pair of jeans which she (Robin) thought looked like blood. In rebuttal testimony Robin further testified that Diane told her she had overheard Steve say to John (Henderson) on the telephone that he had killed a woman.
Steve Strubberg testified in his own defense that there had been some conversation between Robertson, Henderson and himself about robbing the "old lady" in which he had attempted to persuade the other two that they should find someway to get the money without hurting the woman such as breaking out a window and hooking the purse with a long stick. He had gone to her house on the day before the murder and thrown a coke bottle through the window so Henderson and Robertson could see that they could do that.
Defendant further related that on the day of February 5 Henderson and Robertson had been taking "speed" pills and were "talking crazier and crazier." He, defendant, left that evening to drink coffee with a friend because he did not want to be around the other two and later went to a tavern where he stayed until closing time around 2 a.m. When he returned home a little after 2 o' clock the two boys were sitting at the kitchen table counting money, some of which they handed him. They said that they had "robbed that old woman." After hearing this he went to the victim's house, found the door standing open, went in and saw that she was dead. When he got back home Henderson was gone. He saw his jeans, the bottoms of which were wet, lying on the kitchen floor beside his boots. Robertson was in the utility room scraping paper off some bottles and crushing the bottles into the trash can. (There had been earlier testimony by a police officer that parts of plastic pill bottles identified as belonging to the victim had been found in that trash can.) He then went upstairs to bed.
Defendant first argues that error occurred in the cross-examination of Diane Strubberg when the prosecutor questioned her about prior statements, allegedly made to the police and to Robin Wren, that Steve had "told his Mom he thinks he killed a woman"; that he had said to her (Diane) that "he was in on it"; "he remembered hitting her a few times"; and "all he could say was that he ...