APPEAL from the Circuit Court of Lake County; the Hon. JOHN L.
HUGHES, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 18, 1980.
Defendant, an Elk Grove High School physical education-dance teacher, was indicted January 17, 1978, on two counts for the December 5, 1977, murder of her husband, Larry Weaver, who was an assistant school district superintendent. (Ill. Rev. Stat. 1975, ch. 38, par. 9-1(a).) Defendant was found guilty of murder by a jury, and received a sentence of 40 to 60 years after electing to be sentenced under the old code. Defendant's $250,000 bond was revoked upon sentencing and she is presently incarcerated. Sixteen issues were raised on appeal. We discuss only three of those issues, and reverse and remand on the basis the defendant did not receive a fair trial.
The record disclosed that at approximately 1:30 a.m. on December 5, 1977, defendant's next-door neighbor, Cindy Goodfellow, was awakened by a constant, loud, rapid knocking on her front door. It was the defendant, clad only in a nightgown, carrying over her shoulder and under a blanket her nine-year-old daughter, Tiffany. Mrs. Goodfellow described the defendant as "full of panic and scared to death." Defendant said: "There is a fire. Call the fire department and the police." Defendant also said there were men at her house with guns. Looking out of her window, Mrs. Goodfellow did not see any fire nor men in the house, which was all dark. Police and fire units arrived, and police with flashlights entered the Weaver home first, gaining access through the slightly ajar sliding glass door from which the defendant had fled her house. Police smelled a slight odor of smoke upon entering the Weaver home and proceeded down the hall to check the bedrooms, all of which had open doors except the master bedroom. The master bedroom door was hot to the touch, and the police resummoned the fire units, some of which had already left the scene. The master bedroom was ventilated by breaking a window from the outside and fireman entered the room. Entry to the bedroom occurred approximately 45 minutes after the original call was made from the Goodfellow home. There was smoke, and the bed was observed to be a glowing, smoldering object which was extinguished with a hand-held extinguisher and a stream of water from a 1 1/2-inch fire hose. The body found in the bed was identified through dental charts as the defendant's husband. He had been shot in the head, and the near contact wound found near his left temple was determined to be the result of a .22-caliber copper-covered bullet. Death was testified to as having been instantaneous. He suffered second and third degree burns from the fire which occurred anywhere between one minute to one hour after his death. The exact cause of the fire was not discovered, nor was it determined if an accelerant had been used.
The State presented evidence and photos in support of its theory that the deceased was in bed, under the covers and asleep at the time he was shot. Testimony from a pathologist during trial indicated he was unable to determine what position the deceased was in when he was shot. Damage from the fire was most extensive on the lower left-hand side of the bed, the side where the body was found. The fire and heat caused various degrees of charring and melting to other items in the room and caused plastic ceiling tiles in the master bedroom to fall to the floor.
No weapon or ammunition was found in the house, although there was testimony that the deceased owned a .22-caliber rifle. All doors in the house were found locked from the inside, except the door Mrs. Weaver had exited. The doors equipped with dead bolt locks were dead-bolt locked. There were no signs of tampering with the doors or windows, nor were there any signs of ransacking in the house. The double automatic garage doors were in the down position, and both of the Weavers' cars were in the garage. The engine block of the blue car usually used by the defendant was warm; the other car was cold. The garage was an unheated one. There was water on both front seat floor mats in the blue car, and the seat was in the full forward position. Mr. Weaver was 6 feet tall; Mrs. Weaver is approximately 5 feet 7 inches tall. The defendant's purse and car keys were found on a counter near the door leading to the garage. The car had been used earlier during the evening of December 4 at about 7 p.m., when Mr. Weaver used the defendant's car to pick up Tiffany at choir practice. The Weaver house was in Long Grove and the surrounding area consisted of many open fields and farming area. The defendant gave police a description of the two alleged home invaders and composite sketches were made. The record indicates there was possibly an identification as the result of the composites, but the State's hearsay objections were sustained and defense counsel was unable to elicit testimony on this point.
The State advanced the theory that defendant's motive was that she was discontent in her marriage and had had an affair with her boss at school, Robert Tipsword. Further she was frustrated by her husband in trying to carry on a relationship with her brother-in-law, Dennis Johnston. Additionally, the State presented testimony relating to the existence of other possible motives such as deceased's life insurance policies and employment death benefits; his will; the value and joint tenancy of their home; past moneys received by him from his father; the Weavers' condominium in Florida; property owned by his mother and father in Arkansas, and his potential inheritances. The theory was that financial gain may have provided an alternative motive for the murder, or at least, that this financial state of affairs did not present any hindrance to the murder.
The defense presented no witnesses, and made numerous motions for mistrial for various reasons. All were denied, as were motions for a directed verdict and post-trial and supplemental post-trial motions.
We begin our consideration of this appeal with the defendant's contention that reversible error occurred due to the failure of the State to supply defense counsel with certain discovery prior to trial. Pat Weaver, the deceased's sister, testified at trial that shortly after Christmas of 1977, when the defendant was in Magnolia, Arkansas, the deceased's mother asked the defendant if she had had an affair with Robert Tipsword and whether Larry (the deceased) and Tipsword's wife, Winifred, knew about it. The witness testified the defendant answered affirmatively to both questions. She further testified she later talked to Winifred, who denied knowledge of the affair, and that the defendant later recanted her statement that Larry knew about it.
Defense counsel asked either that Weaver's testimony be stricken or that a mistrial be declared since the fact of defendant's admission as testified to by Pat Weaver was not provided to defense counsel prior to Weaver's testimony pursuant to Supreme Court Rule 412. (Ill. Rev. Stat. 1979, ch. 110A, par. 412.) The Assistant State's Attorney admitted in chambers that this was true, and that she could have let defense counsel speak with the witness out in the hall, but that she "just didn't think about it." She added that defense counsel had not asked to speak with the witness even though she was available. Defense counsel stated he thought he already knew what her testimony was going to be based on the discovery he had received from the State relative to this witness.
Pat Weaver testified the State had general knowledge of the substance of this admission approximately two to three weeks before trial, and the Assistant State's Attorney stated in chambers she knew the exact details of the admission when the trial began on October 18, 1978, which was a week before Weaver actually testified on October 25. At no time prior to this witness' testimony was defense counsel made aware of the extremely damaging nature of the testimony to be given.
• 1 An admission is a statement of independent facts which, when taken in connection with proof of other facts, may lead to an inference of guilt of the crime charged, but from which guilt does not necessarily flow. (People v. Walters (1979), 69 Ill. App.3d 906, 919.) Although failure to disclose exculpatory information is quite serious, failure to disclose information which is inculpatory in nature before actually presenting it in open court in front of the jury can be far more damaging, for it presents defense counsel with the almost impossible task of rebutting, or at least neutralizing, his client's own statement. Such a task is particularly more difficult where the information is received after the trial has progressed for a considerable amount of time and where the decision not to have the defendant testify likely has already been made. When such is the case, defense counsel can only rebut or neutralize the inculpatory statement through cross-examination and appropriate jury instructions, both of which are integrally related to the theory of defense and require extraordinarily careful preparation in order to be effective.
When evidence against a defendant for murder is circumstantial, proof beyond a reasonable doubt requires the exclusion of every reasonable hypothesis of innocence that is consistent with the defendant's innocence. (People v. Howard (1979), 74 Ill. App.3d 870.) Not surprisingly, any reasonable hypothesis of innocence is likely to be discounted progressively by degrees as evidence of possible motives compounds. The State avidly posited that the defendant's murder motive was her marital discontent as evidenced by her seven-year affair with Robert Tipsword, and that the deceased's interference with the defendant's alleged relationship with her brother-in-law, Dennis Johnston, was, in effect, the last straw for the defendant and the actual impetus for murder. However, the time of and duration of the defendant's alleged affair with Tipsword was never established by the evidence to be either proximate in time to the murder or of a seven-year duration. The prosecutor included this reference in closing argument improperly. The only mention of a seven-year duration was made in chambers when the parties argued, and the defense was granted, a motion in limine regarding a conversation Winifred Tipsword had with the defendant after she had been charged with the murder of her husband ...