APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
MORAN, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 10, 1981.
Following a jury trial in the circuit court of Cook County, the defendant, Rita Dowd, was found guilty of murder and sentenced to a term of 30 to 60 years in the penitentiary. It is her contention in this appeal that several errors occurred in the trial court which prevented her from receiving a fair trial. Specifically, Dowd contends that: (1) the prosecutor knowingly elicited false testimony and objected to defense efforts to correct that testimony; (2) the trial court improperly limited cross-examination designed to show bias or motive to testify falsely; (3) the prosecutor repeatedly asked her to judge the veracity of other witnesses; (4) her attorney failed to tender a necessary accomplice witness instruction; (5) the court erred in failing to suppress certain evidence; (6) the prosecutor made improper and inflammatory statements during both the trial and closing argument; (7) her trial counsel was incompetent; (8) the sentence of 30 to 60 years for murder is excessive; and (9) the mittimus does not correctly reflect the judgment.
On May 23, 1975, Mary Louise Wilhelm was strangled to death in the front seat of an automobile. At the time of the incident, the victim was seated between her husband, Kenneth Wilhelm, and Rita Dowd. Her body was taken to the south side of Chicago and abandoned. Both Kenneth Wilhelm and Dowd were indicted for conspiracy and for the murder of Mary Louise Wilhelm. Motions on behalf of each defendant to quash a search warrant for Dowd's apartment and to suppress evidence, a cord or belt alleged to be the murder weapon, were heard and denied. On June 3, 1977, Kenneth Wilhelm entered into a plea agreement with the State. The agreement as stated for the record provided that Wilhelm would plead guilty to murder and would affirm a statement he had given to police which implicated Dowd in the crime. In return, the State would recommend that Wilhelm receive a sentence of 14 years to 14 years and one day, the minimum sentence for murder in the State of Illinois.
The trial of Rita Dowd lasted two weeks; the testimony covered nearly 1300 record pages. Kenneth Wilhelm was the first witness. He testified that he had known Dowd for five or six years and that he had lived with her and her two children for a short time. On the evening of May 18, 1975, he had a conversation with Dowd in which they outlined a plan to murder Mary Louise Wilhelm. Kenneth suggested that he would take Mary Louise out to a bar the following Thursday night. Dowd said that she and a friend would be waiting at the bar. He did not like the idea of someone else being there, but Dowd insisted because "she didn't want to drive back from wherever we were going to go by herself * * * she would be too nervous."
Kenneth Wilhelm then stated that he went to Dowd's home on the night before the incident. She told him that she had two containers of tranquilizer and that he should take one and she would keep the other. They decided that Kenneth would take Mary Louise to a bar, empty his container into one of Mary Louise's drinks, and then take her to a bar called Joey C's where Dowd would be waiting. They discussed the story they would tell police after the murder, and decided that they would make it look as though a robbery and abduction had taken place. They would say that two black men held them up and drove them to the south side, and that they had dropped Kenneth off on the way. Dowd said that her friend, Linda Sang, would be there and would drive them back to the north side.
Wilhelm testified that on the following evening, May 22, 1975, he and Mary Louise went to the Country Club Lounge. However, instead of pouring the tranquilizer into Mary Louise's drink as planned, Kenneth poured the vial of white powder down a sink in the washroom because there were too many people around and he could not pour it into Mary Louise's drink. Kenneth and Mary Louise then went to Joey C's. He saw Dowd seated at the bar when he went to order drinks. She asked him if he put the tranquilizer in Mary Louise's drink and Kenneth said yes. He gave her the empty container. He went to the bar a second time and asked her if she "had the stuff," and she said it was in her purse. She opened her purse and he saw what looked like a cord or rope. Dowd then emptied her container of tranquilizer into Mary Louise's drink. Kenneth returned to Mary Louise and gave her the drink.
As Kenneth and Mary Louise left Joey C's, he noticed Dowd following at a distance of approximately 15 feet. When they reached the car, Dowd told Mary Louise to get inside. Kenneth was in the driver's seat, Mary Louise was in the middle and Dowd was next to Mary Louise. Dowd told Mary Louise, "I want you to know that I am still seeing Ken, we are still seeing each other and that I am pregnant with Ken's baby." A brief fight ensued, during which Mary Louise said, "You are not going to kill me." Kenneth saw Dowd strangling Mary Louise. When he saw Mary Louise's arms go up near her neck, he held both of her arms down. Mary Louise collapsed. Dowd still had the rope around her neck.
Kenneth began to drive. Linda Sang, a friend of Dowd, followed in her car. Kenneth rolled down his window and told Linda Sang to follow him wherever he went. Dowd was still attempting to strangle Mary Louise at the time Kenneth spoke to Linda Sang. They drove to the south side of the city and left Mary Louise's body in the car. Dowd took Mary Louise's purse, and they both got into the back seat of Linda Sang's car. Sang let Kenneth out of the car on the Congress Expressway, and he called the police from a public phone.
On cross-examination, Kenneth Wilhelm stated that he first met Dowd in 1972. He left his wife for some time and asked Dowd to marry him. He first discussed killing Mary Louise in the winter of 1975. He solicited a man named Marty Anthony, an acquaintance of Dowd, to kill Mary Louise.
Defense counsel then asked Kenneth if he had ever told a story different from the story that he told the jury. Kenneth stated that he first told the police that two black men had held him up. He subsequently gave a written statement to the police, which he summarized as follows:
"I told them that we went to Country Club Lounge for a few drinks, I emptied the contents of the container into the sink and after a while we went to Joey C's. There Rita emptied the contents of her container in there, finished the drinks at around 1 o'clock, we left there, went to the back, and I told the police that, that I had an argument with Mary Louise and I strangled her with my hands."
Wilhelm then testified that he gave a second written statement similar to his trial testimony after speaking with his mother and brother.
On re-cross-examination, Wilhelm testified that he was serving a sentence of 14 years to 14 years and one day in Menard penitentiary. The State stipulated that Wilhelm had pled guilty to the murder of his wife. Wilhelm testified that as a condition of his sentencing, he was required to affirm the second of his written statements, which implicated Dowd. The State's Attorney then pursued the following line of redirect examination:
"[Prosecutor]: Were any offers made to you for pleading guilty sir?
[Kenneth Wilhelm]: I just asked for, to have a plea bargaining agreement instead of going to a jury.
Q. And did the State make you any deals for your plea?
Defense counsel then conducted re-cross-examination as follows:
"[Defense counsel]: Mr. Wilhelm, didn't the State, upon your recommendation or, I mean your request to plead guilty, join with your counsel to recommend the minimum sentence for murder in the State of Illinois under the law?
[Prosecutor]: I am going to object to all this.
[Defense counsel]: Wasn't that the essence of your bargain with the State, Mr. Wilhelm?
[Prosecutor]: Objection, Judge. There was no bargain. He testified there was no bargain.
[Defense counsel]: Judge, I am waiting for your ruling.
[Prosecutor]: Since when is 14 years a bargain, Judge?
[Court]: Sustain the objection.
[Defense counsel]: Did you have any conversations relative to your sentencing with Assistant State's Attorney Boharick and your counsel, George Lynch in prior proceeding?
[Prosecutor]: I am going to object to all of this, Judge, it's completely beyond the scope and irrelevant.
[Court]: Well, I know what he is trying to do.
[Prosecutor]: Of course he spoke to his lawyer, Judge.
[Court]: Let him go ahead. He can answer.
[Kenneth Wilhelm]: Did I speak to Mr. Boharick?
[Defense counsel]: Marcie or George Lynch?
A. In relation to the plea bargain ...