APPEAL from the Circuit Court of Madison County; the Hon.
HAROLD R. CLARK, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant appeals from a judgment rendered upon a conviction by a jury of the crime of murder. The sentence imposed was 40 to 80 years imprisonment. The indictment charged, and the People proved to the jury's satisfaction, that defendant had caused the death of his father by poisoning. Multiple issues are raised and will be stated following a recital of the facts.
The indictment under which defendant was tried contained two counts. Count I alleged he had murdered Herman Hanei (his father), on December 3, 1976, and count II alleged he had murdered Katie Roessel on December 10, 1971. Each offense was alleged to have been committed through the use of a metallic poison, thallium. Defendant was tried only on count I in a trial which convened January 14, 1978.
The principal witness for the People was Geneva Hanei, the widow of the deceased and mother of the defendant. She testified that on December 3, 1976, deceased had consumed a breakfast of oatmeal and eggs. He then left the house to go to a restaurant and to Kroger's. At the restaurant he was observed to have two cups of coffee. He returned home at approximately 10 a.m. and sat down to rest. About 10 minutes later the defendant came to the house to ask his father how to kill a goat. Defendant told his parents that there was a box outside on the sidewalk. He went out and returned with the box, opening it to find four doughnuts. Suggesting that they eat them for lunch, defendant took one. The deceased then selected a cherry one. Two doughnuts, one with chocolate and the other with white icing, remained. The witness ate none. After consuming half his doughnut, the deceased commented that it tasted bitter but, nevertheless, finished eating it. Ten or fifteen minutes after the men had finished their doughnuts, defendant departed. Before and during this time the decedent had been in good health. Shortly thereafter the deceased began to vomit and show other signs of illness. Between 8 and 9 o'clock that evening he was taken to the hospital where between 1:30 and 2 o'clock the next afternoon, he died. On autopsy, death was ascribed to thallium poisoning.
On cross-examination Mrs. Hanei testified that defendant had not indicated to the deceased which of the doughnuts he should eat. She also stated that it was common knowledge that the deceased preferred "plain doughnuts" and the two doughnuts remaining in the box were plain doughnuts.
Though out of order in which the evidence was received, we will pursue for the moment the doughnut-eating incident. Defendant testified in his own behalf. He stated that he had gone to the home of the deceased at about 10:30 a.m. on December 3, 1976. He took nothing with him to the house. He was asking his father's advice on how to butcher a goat for meat and remained for about 10 minutes to talk to him. As the defendant and his parents left the house, his father walked over and picked up a small white box sitting atop a garbage can. The box was opened, disclosing about a half dozen doughnuts. Deceased stated, "Margie [a daughter] probably brought that down and put it there." Deceased then suggested they have a little lunch and they all returned to the kitchen. The deceased stated, "I'll take that cherry one in there." Defendant denied taking the doughnuts to the house.
The testimony of Mary Volger, a registered nurse, was offered by defendant. She was on duty in the emergency room of Alton Memorial Hospital when the deceased was brought there at about 8:50 p.m. on December 3, 1976. When she was taking deceased's history he stated that his illness started after he had eaten some doughnuts he had found on his back porch and that he had gone out on the back porch to get the doughnuts. Deceased made no mention of the defendant.
The People presented the testimony of Dr. H. Frank Holman, a pathologist who worked with the Smith-Kline Clinical Laboratory Group in St. Louis. At the request of the county coroner he performed an autopsy on the body of the deceased. As part of the procedure he withdrew samples of blood and gastric content for toxicological study. He stated that the finding of that study was the presence of a large amount of thallium in the blood and no other drugs or chemicals were found. He related that the level of thallium in the blood was a toxic level and was the cause of death. The report from the laboratory was that there were 2,550 micrograms per 100 c.c. of blood which the Doctor described as a "high level" and a "lethal level."
On cross-examination Dr. Holman stated that the thallium was introduced into the body of deceased relatively recently. He conceded that he was not an expert on thallium poisoning.
Defendant presented the testimony of Alphonse Poklis, director of the forensic and environmental toxicology laboratories of St. Louis University. He testified that thallium is tasteless. He recounted an experiment he had conducted in which he had placed a lethal dose of thallium in a doughnut. He then chewed a 10-gram section of the doughnut and had tasted no bitterness and had been unable to detect the presence of the thallium.
Leonora Hanei, sister-in-law of the deceased, testified that following his death on December 4, 1976, she went to the home of deceased and got a box containing doughnuts and took it to the hospital. The box was in a brown paper sack. She did not know how many doughnuts were in the box, but she had seen the box at the home when she arrived there in the middle of the night on December 3.
Jacquelin Burjes received the brown paper bag at the hospital, stating that it was thought to contain doughnuts which the deceased had eaten. She had not opened the bag but had wrapped it in plastic and sealed it. She subsequently gave the bag to an Alton policeman, Officer Cunningham. The officer looked into the bag and saw that it contained a white box similar to People's exhibit No. 8. He did not open the box but took it to the police department, tagged it as evidence and placed it in an evidence locker. On December 13, 1976, two "longjohn doughnuts" and a white cardboard box were shipped to the FBI Laboratory in Washington.
Defendant had filed a pretrial motion to suppress the results of any analysis of the cardboard box and doughnuts, but the motion was denied and the evidence admitted.
An FBI special agent performed tests on the items received. He scraped from the bottom and sides of the box what appeared to be the remains of doughnut icing. Test results were that there was a very small amount of thallium present. It was described as being on the order of a third of a part per million which would not have had any toxic effect on an individual. Test results on the doughnuts disclosed one with white icing contained no thallium and one with chocolate icing contained thallium in a concentration of approximately one part per million, described as a trace quantity with no toxic effect.
Officers of the Alton Police Department obtained a search warrant to search defendant's premises and in a search on September 21, 1977, they seized a mortar and pestle. These were tested by a chemist for the Illinois Department of Public Health for the presence of thallium and thallium was found. The chemist admitted he had never before performed a test for the presence of thallium, and he admitted that there were places in the analysis guide book that required him to make his own decisions as to what operative parameters to use. He conceded that while the mortar and pestle were in his laboratory they were not locked up but were out in the open, accessible to anyone who might come into the laboratory.
Defendant's pretrial motion to suppress the mortar and pestle, and the results of the tests performed upon them, was denied and the evidence was admitted.
Personnel from the State Public Health Department Toxicology Laboratory testified in detail regarding the receipt, handling and testing of the mortar and pestle. They were received in the Chicago office from the Alton police by certified mail. They were kept on the evidence shelf in a locked room of the toxicology laboratory. They were sent by departmental courier to the heavy metals testing laboratory of the department for testing. Detailed descriptions of the methods of packaging and handling were given.
The mortar and pestle ultimately were delivered by George Perry, a chemist employed by the department, for performance of the tests. Thallium was described as a rare metallic element. Mr. Perry described the test for determination of the presence of thallium in great detail. When asked the name of the test performed he stated, "I was running a graphite furnace of a Perkin Elmer atomic absorption spectrophotometer." Briefly and superficially described, the test consisted of comparing of a known sample of thallium with an acid solution of the suspect substance prepared from the mortar and pestle. The testing was done in the heavy metals room of the Springfield laboratory and Mr. Perry related that perhaps 30 different people would have had access to the room.
Mr. Perry was subjected to a lengthy and rigorous cross-examination regarding all phases of the testing procedure and the results of the test.
Over defendant's continuous objection and request for mistrial the People presented the testimony of William Rogers. Between April and June of 1974 he was an attorney practicing with the Alton firm of Pratt, Kardis and Strawn. In that period of time a man identified as defendant had come in and asked him to prepare a deed transferring a small residential property in Alton from his mother and father to him. Rogers did not recall the father's name or the location of the property. He stated that the man told him his father was terminally ill with cancer. Rogers directed preparation of the deed which was typed by secretary Barbara Garvey. He charged $20 or $25 which would have been shown in the firm's books as miscellaneous income.
Defendant presented the testimony of Barbara Garvey and Vicki Jackson, secretaries of the law firm, both of whom testified they did not remember preparing a deed from Herman Hanei and wife to George Hanei. Paul Pratt, sole stockholder of the law firm, testified to the bookkeeping procedures followed by the firm. He related that any fee paid for preparation of a deed would be given to the preparing attorney who would then give it to the in-house accountant who would record its receipt by client name. Mr. Pratt had examined the records of the firm for the period in question and stated that defendant's name did not appear.
The widow of deceased testified that the deceased and the defendant did not get along well but the last argument between them had been over 30 years previously and concerned a subject she did not recall. Donald Hanei, a brother of defendant, related that in June 1973 he saw the defendant point his finger at deceased and say, "God damn you. Someday I'll get you. You wait and see." There was also evidence that defendant had been cut out of his parents' will.
The People introduced evidence relative to the death of Katie Roessel. Defendant's pretrial motion to preclude any such evidence had been denied as were defendant's renewed objections as the evidence was being presented.
Katie Roessel had died on December 29, 1971, approximately 5 years prior to the death of Herman Hanei. Dr. John Mueller, a clinical pathologist at Alton Memorial Hospital, performed an autopsy on the body of Katie Roessel on the day she died. His report concluded she had died as a result of myocardial infarction occasioned by generalized arteriosclerosis, myocardial insufficiency, anoxia and diffuse hemorrhagic duodenitis. This testimony of Dr. Miller was offered by defendant as rebuttal to testimony by Dr. William Drake, a pathologist called by the People.
Dr. Drake performed an autopsy on the exhumed remains of Katie Roessel on June 22, 1977. The body had been exhumed for the purpose of performing toxicological analysis on the tissues. Based upon his autopsic observations and the toxicological test results, Dr. Drake stated that the cause of death of Katie Roessel had been cardiovascular collapse due to thallium poisoning. Dr. Drake further stated that laboratory reports on analysis of the various tissue samples he submitted showed high levels of thallium in practically every tissue, and the levels were toxic.
To link defendant with the death of Katie Roessel the People called an Edwardsville attorney for testimony regarding some real estate transactions between defendant and Katie Roessel. The attorney had taken depositions from defendant in connection with lawsuits concerning the validity of some deeds. The depositions had been taken on September 28 and December 16 of 1976. ...