Appeal from the Circuit Court of Christian County; the Hon.
Paul M. Hickman, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
David Lee Pauley, the defendant, was convicted by a jury in the circuit court of Christian County for the August 20, 1981, murder of 19-year-old Dottie Diane Rhodes. He was sentenced to 40 years' imprisonment. An autopsy showed that the victim was killed by a gunshot wound in the face between 4:20 and 6:20 a.m. on the morning of August 20. The body was found that afternoon lying on an abandoned bridge over the South Fork River, about five miles southwest of Taylorville.
On the evening of August 19, the victim had gone with her sister, Debbie Christer, to the Victory Tavern in Pana, where the defendant was playing in a band. The defendant, who was acquainted with the victim, asked her to have breakfast with him after the band finished playing. She later arranged by phone for the defendant to pick her up at her sister's house in Pana. After the defendant and another couple picked up the victim at her sister's house, the group went to several different places together. At about 2:30 or 3 a.m., the victim and the defendant left the others and drove away in the defendant's car.
The prosecution's chief witness was 21-year-old Thomas Forrest, who was living at the time of the murder in a hearse parked in Hewittville, about four miles from where the body was found. Forrest testified that in the early morning hours of August 20, he was awakened by knocking on the windows of the hearse and introduced by the defendant to a woman named "Dot." He later identified the deceased as the woman who accompanied the defendant. Forrest stated he got into the defendant's car, a pale blue 1971 Oldsmobile, and conversed with the defendant and the victim for 20 to 30 minutes. The defendant invited Forrest to accompany them to a party in Shelbyville; however, Forrest declined the invitation. The defendant then asked for a blanket, stating that "he was going to spend the rest of the night there at the lot with the girl."
The defendant took the blanket and drove away, but returned a short time later and asked Forrest to loan him a sawed-off .410 shotgun. Forrest further testified that the defendant checked to see if the weapon was loaded, said he intended to commit an armed robbery and then left again in his car. The defendant returned to the hearse a third time, about 15 or 20 minutes later, and returned the shotgun to Forrest. Forrest testified that on Saturday, August 22, he disassembled and cleaned the shotgun.
Forrest consented to a search of his hearse and automobile on August 23, according to the testimony of Christian County sheriff's investigator George Wise. Wise stated that he and other officers recovered Forrest's shotgun, a blue blanket, loaded revolver, a large quantity of money and several bottles of pills. Wise seized and destroyed the drugs.
Corroborating witnesses offered by the prosecution included Terry Wadkins and Helen McDonald, who lived near the bridge. Wadkins testified that at 5:30 a.m. on the day of the murder, he heard a vehicle drive to the bridge. Shortly after that, he heard a shot and then heard the vehicle leave. He stated that although he did not see the car, it sounded like it had a hole in its muffler. Helen McDonald testified that she was awakened about 5:30 a.m. by the sound of an old car driving away from the bridge. She described the car as "maybe a dirty gray color" and occupied by only the driver, who "looked like a man." Detective Donald Brown testified that he had examined the defendant's car and found that there was a large hole in the muffler and that the crossover pipe was cracked. Detective Brown described the auto's exhaust system as "very noisy." In addition, Hazel Crisp, who lived with the defendant in a mobile home in Owaneco, testified that he got home on the morning of August 20 between 5:55 and 6:10 a.m.
Pathologist Edward Slifer was called as the first witness for the defense. He testified that he took oral, vaginal and rectal swabs of the victim during the autopsy and found semen in her vagina and on her underclothes. Deborah Fesser, an Illinois Department of Law Enforcement serologist, testified that she compared samples of the defendant's pubic hair with two hairs found in the victim's underwear. One of the hairs could have originated from the deceased, the other hair was dissimilar to the pubic hair of the deceased. Neither hair was similar to that of the defendant. The serologist stated she could not determine how long the hairs had been in the underwear. Thomas Forrest testified that he had refused police requests that he submit samples of his head and pubic hair for comparison testing.
After final arguments, the jury was instructed on the law and retired to deliberate. The jury returned with a verdict of guilty of murder. On appeal, the defendant argues that he was denied a fair trial by the remarks of the prosecutor during trial and during closing arguments.
The defendant makes four specific complaints about statements made by the two prosecutors. The defendant claims that the prosecutors: (1) repeatedly implied that he had the burden of disproving his guilt; (2) improperly appealed to the sympathy of the jury; (3) offered their personal opinions as to the defendant's guilt; and (4) misstated or overstated important evidence.
• 1 The most serious issue presented is whether the prosecutor's comments about the burden of proof were reversible error. (See generally United States v. Hastings (1983), 461 U.S. ___, 76 L.Ed.2d 96, 103 S.Ct. 1974; People v. Starks (1983), 116 Ill. App.3d 384.) The following statements are presented by the defendant as examples of allegedly improper prosecution comments that the defendant was required to prove himself not guilty:
"MR. HOGAN [assistant State's Attorney]: Now, the testimony, the State feels from that time on [2:30-3:00 a.m.], shows that Dottie Diane Rhodes was with David Pauley. There has been no testimony she was ever with anybody else.
MR. HOGAN: There has been no explanation given as to the whereabouts of Dottie Rhodes or Mr. Pauley during this period of time.
MR. WARD [rebuttal by State's Attorney]: Now then, what you do in a criminal case when you haven't got a defense. You throw a smoke screen.
MS. SLEPICKA [defense counsel]: Your Honor, I'm going to object to that remark.
MR. WARD: Clutter the issues.
MS. SLEPICKA: The defense has to present no evidence in a case. Has to be no presentation of a defense in case.
MR. WARD: You did though.
MS. SLEPICKA: Your Honor, I object to that.
THE COURT: They don't have to present ...