Appeal from the Circuit Court of Champaign County, the Hon.
Harold L. Jensen, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
A jury in Champaign County found defendant, Jerry Arthur Gleckler, guilty of the shotgun murders of two teenagers, Douglas Scott Simmons and Mark Harris. Two days later, on May 26, 1978, this same jury decided that no mitigating factors existed which were sufficient to preclude a sentence of death. Direct appeal was taken to this court. See 73 Ill.2d R. 603.
Evidence introduced at trial showed that the bodies of Simmons and Harris were found at 7:30 a.m. on September 26, 1977, in a ditch beside a county road near Mahomet. Both had shotgun wounds in the back and had been killed by close-range shotgun blasts to the back of the head. Defendant Gleckler was arrested on September 28. Under questioning by police, he agreed to waive his Miranda rights and make a recorded statement.
Gleckler was indicted for murder, along with Theodore Parsons and Robert Kirkpatrick, on October 4, 1977. The indictments also charged that Simmons and Harris were killed by defendants during the course of an armed robbery. On December 12, 1977, the State's motion to sever the cases against the three defendants was granted.
The recorded statement and Gleckler's trial testimony formed the bulk of the evidence against him. In his testimony, Gleckler, 35, said he had been a heavy drinker since his teenage years. His background included stints in the National Guard (1964-68) and in the United States Army (1968-74). In 1977, Glecker joined the Harmony House in Danville for help with his drinking problem. There he met and befriended Robert Kirkpatrick. In August, Gleckler met Theodore Parsons, primarily a friend of Kirkpatrick. Gleckler and Kirkpatrick got drunk on August 30, and Gleckler did not again return to Harmony House. He moved into a trailer of a friend of Kirkpatrick.
On September 23, 1977, Gleckler, Kirkpatrick and Parsons, during a drive back from the home of Kirkpatrick's parents, discussed farmers in the area who owned guns. Gleckler mentioned a residence containing several guns. On September 24, Parsons visited Gleckler and persuaded him to burglarize that residence. They stole two shotguns (one 12-gauge and one 20-gauge), ammunition, and several other guns thought by Gleckler to be worth $3,000. Gleckler testified that he wanted to sell these guns. (Apparently one of the guns was eventually sold after the crime at issue here took place.)
Gleckler and Parsons went back to the trailer. Parsons left and then returned with Kirkpatrick. Gleckler briefly assisted Parsons in sawing off the barrel of a shotgun and then went to sleep. Parsons and Kirkpatrick left the trailer at 6 or 7 p.m.
Other testimony showed that Kirkpatrick and Parsons that evening robbed and shot a gas station attendant, who was able to describe his assailant (Parsons) and his accomplice (Kirkpatrick) and their vehicle (Parsons' car). The next day Gleckler was persuaded by Kirkpatrick and Parsons to take a ride with them, supposedly in order to sell the 12-gauge shotgun. Instead they drove around. Gleckler, having consumed 8 to 10 beers, slept in the car for most of the time. That evening they ate dinner in a Mahomet restaurant. Another patron overheard a portion of their conversation in which one of the three cautioned the group to avoid doing anything by which someone could recognize them.
After eating they drove to a liquor store. Glecker went inside and bought beer and whiskey. When Gleckler returned to the car, Parsons asked several questions about the store and revealed an intention to rob it. When Gleckler demurred, Parsons said he was "chicken s____" like Kirkpatrick and then disclosed the robbery and shooting of the prior evening.
It is obvious that some sort of criminal enterprise was agreed upon and that obtaining another car, to avoid identification of Parsons', was a crucial element of their plan.
To that end they cruised an apartment complex but, upon seeing a police car, they returned to the liquor store parking lot. Parsons' stated intention was to follow an exiting store patron and take his or her car. Gleckler, in his testimony and in his arrest statement, said generally that he argued against robbing the liquor store and against following a store patron. At this time he went into the tavern to use the bathroom and have a drink. He told Kirkpatrick to "talk" to Parsons. After Gleckler returned to the car, another car, a green Plymouth with a white top, later identified as the victims' car, pulled into the lot and one occupant got out and went into the store. This person came out and reentered the Plymouth. When it left, Parsons, with Kirkpatrick in the front seat and Gleckler in the back seat, drove after it. Parsons followed the car and twice flashed his lights at it to get it to stop.
In his arrest statement, Gleckler was asked specifically if Parsons said anything other than that he was going to stop and take their car. Gleckler answered, "No, he didn't." The Plymouth ultimately pulled over or was forced off the road. Parsons pulled over and parked in front of them, got out of the car, and told the occupants of the Plymouth to get out of their car without looking. No further words were spoken between the victims and Parsons.
Gleckler began to get out of the car. He heard two shotgun blasts. At this point, however, Gleckler's arrest interview and trial testimony diverge. In the arrest interview Gleckler said that when he saw how badly the boys were shot, he went back to the car, loaded his gun, returned to the ditch where the boys lay bleeding, sounding as if they were choking, and shot each of them twice in the back of the head. Either Kirkpatrick or Parsons brought him shells to reload after his first shot.
Gleckler was asked when he decided to "finish" the boys off.
"A. After I had already looked down and they had so much blood running out of them, I knew there wasn't no way they could be saved.
Q. So you knew, in your own mind, you had to do that when you left and went back to the car — car for shells?
A. They was just — they were just laying there and dying. There wasn't no — couldn't even have a doctor come in time."
The questioner continued:
"Q. Did either one of these young men put up any kind of a struggle — struggle before being shot?
A. No sir. I didn't hear them say nothing.
Q. Did they have any chance for a defense to defend themselves?
A. Not that I know of. There — there was no reason for it. I thought he [Parsons] was going to take them in the cornfield and tie them up, and that was —
Q. Had you discussed, the three of you, that that would be the thing to do, to tie them up, or you just —
A No, I told them to take them and just tie them up, and I think that's good enough. I didn't have the slightest idea that was going to go on a ride with it.
Q. But at this point, your basic thing was your wanting the car?
A. That's all. Transportation.
Q. And then you were going to use that car of theirs to go back and pull the armed robbery of the ...