Appeal from the Circuit Court of McLean County, the Hon. Henry
L. Cowlin, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 4, 1984.
Defendant, Charles Albanese, was arrested in November of 1981, and a McHenry County grand jury returned a four-count indictment charging him with the murder of his father and his wife's grandmother by arsenic poisoning, the attempted murder of his brother, and the offense of theft from Allied Die Casting Corporation. The defendant was also indicted in Lake County for the murder of his mother-in-law, but that separate charge is not the subject of this appeal. In January of 1982, the McHenry County grand jury issued an amended indictment which added a further count of theft. The defendant requested and obtained a change of venue to McLean County, where a jury found him guilty in May of 1982 and sentenced him to death. A direct appeal was taken to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603).
In 1980, Charles Albanese was president of Allied Die Casting Corporation, a family business that manufactured trophies and loving cups. Albanese was married and lived in a large home in Spring Grove with his third wife and two daughters. Albanese had three other daughters by his first wife, and they were living in Wisconsin with their mother. Albanese maintained what can be termed a comfortable life style; he had a swimming pool, two Cadillacs leased by Allied Die Casting Corporation for the family's use, and he took frequent vacations to tropical destinations. Albanese testified that he spent everything that he earned and was not able to live on $110,000 per year "and do some of the things I want."
Charles Albanese began experiencing serious economic problems in July of 1980. He was behind in his mortgage payment and six months' delinquent in child-support payments to his first wife. He also owed a $15,000 note at the State Bank of Richmond, due on August 14, 1980. In July of 1980, his ex-wife's lawyer filed a petition requiring him to appear in court on a rule to show cause, and a body attachment was issued when he failed to appear.
On August 3, 1980, Marion Mueller, defendant's mother-in-law, and Mary Lambert, Mrs. Albanese's grandmother, came to the Albanese home for Sunday dinner. Mueller and Lambert lived together in a condominium at Leisure Village, a retirement complex in Fox Lake, and often visited the Albanese home for Sunday dinner. The family ate Polish sausage and sauerkraut family style from the same platter, so it appears the arsenic was ingested from another source. Charles Albanese testified that, to his knowledge, the two guests had nothing to drink. Charles Albanese insisted this was the case even though the 87-year-old Mary Lambert was working in the yard on a hot day for several hours prior to eating dinner.
On August 4, 1980, Charles Albanese sent his ex-wife's lawyer a postdated check for $3,648, the amount of the child-support arrearages, along with a note that informed the attorney that the check was dated August 15 because a deposit would be made to his account around August 13. Charles also sent him a postdated check for $500. On August 5, 1980, Mary Lambert was admitted to the emergency room at McHenry Hospital with a history of vomiting and diarrhea for the preceding 36 to 48 hours. On August 6, 1980, Mrs. Lambert died leaving Marion Mueller and Virginia Albanese, as her heirs. Charles Albanese's wife, Virginia Albanese, closed out her grandmother's checking account and transferred $3,600 to the joint-tenancy checking account she shared with her husband. This amount helped to cover the postdated check for Charles Albanese's child-support payments.
Charles Albanese was arrested for his child-support arrearage on August 8, 1980, while on the way to Mary Lambert's funeral. He was released when it was made clear that he would pay the delinquent child support. Marion Mueller experienced vomiting and diarrhea shortly after the August 3, 1980, meal at the Albanese home, and she was hospitalized at St. Therese's Hospital in Waukegan on August 16, 1980. Her condition deteriorated and she died on August 18, 1980. On August 20, 1980, money held in a joint-tenancy account with Virginia Albanese and Marion Mueller was transferred to the joint-tenancy account of Charles Albanese and Virginia Albanese.
The body of Marion Mueller was exhumed on August 31, 1981, and the body of Mary Lambert was exhumed on August 13, 1981. The official cause of death for both women was acute gastroenteritis due to arsenic poisoning. Mary Lambert had approximately eight times the normal amount of arsenic in her body and Marion Mueller had five times the normal concentration of arsenic. Forensic chemist Joerg Pirl testified that the two women died of a massive dose of arsenic.
Virginia Albanese received $6,000 in life insurance proceeds and pension fund proceeds from Marion Mueller's death, and the money was used to make the delinquent payments on the Albaneses' mortgage. The State Bank of Richmond granted Charles Albanese two extensions on the note due August 14, 1980, because Charles Albanese told the bank that he had some real estate that he was trying to sell. Charles and Virginia Albanese sold the Leisure Village condominium owned by the two dead women for $50,000 in October of 1980. Virginia Albanese inherited the condominium by intestate succession. Twenty thousand dollars from this sale was deposited in the joint account of Charles and Virginia Albanese, and this amount was used to satisfy the $15,000 note due at the Richmond State Bank.
In 1980, Allied Die Casting was owned by three stockholders: Charles Albanese, M.J. Albanese (Charles' father), and Michael Albanese (Charles' brother). The three men made up the board of directors and each held an executive office. Charles Albanese was president of the corporation, Michael Albanese was vice-president, and M.J. Albanese held the office of secretary-treasurer. The shareholder agreement, approved by the board of directors, gave special powers to M.J. Albanese. He had absolute power to control and manage the company, including the power to veto or negate the decision of any other officer or employee. This arrangement was consistent with the origins of Allied Die Casting. M.J. Albanese was the moving force behind the business, and Charles had joined the family business when a previous job had not worked out. Charles Albanese did not have a good relationship with his brother, Michael Albanese, but conflicting testimony was offered concerning the relationship between Charles Albanese and M.J. Albanese.
A. Donald Fishbein, attorney for Allied Die Casting, testified that he attended a corporate meeting on September 4, 1980. Fishbein, Michael Albanese, Charles Albanese, M.J. Albanese, and M.J.'s wife, Clara Albanese, were in attendance. Fishbein testified that the purpose of the meeting was to terminate the employment of Charles Albanese. Charles Albanese disputed this claim when he testified in his own behalf at trial. After the meeting, the board of directors executed an amendment to the shareholder's agreement that caused the demotion of Charles Albanese. M.J. Albanese was made president, Michael Albanese was made secretary and vice-president, and Charles Albanese was made treasurer. Clara Albanese was to become a stockholder, having equal ownership with the three men.
On September 8, 1980, Michael Albanese ate his lunch at work. He had left his sandwich in his office prior to lunch. Michael began vomiting about an hour after eating lunch, and was hospitalized later that day. He left the hospital on September 13, 1980. On November 14, 1980, Michael Albanese experienced another attack of vomiting and diarrhea about two hours after eating lunch at work, and again sought medical attention. He was not hospitalized, but was placed on a bland diet in order to alleviate the symptoms of an ulcer that was detected by the treating physician, Dr. Miller. Michael Albanese's wife began preparing lunches for Michael to take to work in order to conform with the bland diet recommended by Dr. Miller. Michael testified that his periods of illness usually began after he had eaten or had coffee at work.
On February 21, 1981, Michael Albanese's wife heated a can of pea soup and placed it in a thermos for her husband to take to work. Michael Albanese left the thermos in his office when he left to keep an appointment with Dr. Miller. He returned around lunch time after Dr. Miller had told him that his ulcer was under control and that he could discontinue the bland diet. Michael began eating his soup while M.J. Albanese was talking to him. Charles Albanese urged his father to leave Michael alone until he had finished eating. Michael testified that he only ate about half of the soup because it "tasted funny." He went into the computer room and began working. After a short time, he began vomiting and became so ill that he left the office. He had to stop his car on the side of the road in order to vomit before he reached home. He went to bed but was plagued by vomiting and diarrhea until the next morning, when he called Dr. Miller. Outpatient tests were performed that day, and Dr. Miller ordered immediate hospitalization.
Although Michael was discharged from the hospital on March 13, 1981, his condition was still very serious. In addition to the gastrointestinal difficulties, Michael began experiencing numbness in his hands and feet, and the nerve damage became so severe he was unable to walk, dress himself, or carry on normal business activities. He was in intense pain and had difficulty sleeping at night. His wife had rinsed out the thermos, but police tests revealed the presence of arsenic in the thermos.
Medical tests revealed that Michael Albanese was not suffering from an ulcer, but that he had received sublethal doses of arsenic over a period of several months, and that this poisoning was the cause of his nerve damage. Michael's condition improved slowly, and he was finally able to return to work and walk with the aid of leg braces. At the time of trial, in May 1982, he still had difficulty with his hands, and the residual numbness was so severe he was unable to perform many simple tasks such as buttoning his shirt.
M.J. Albanese kept a cookie jar in his credenza at work, and often ate cookies while he worked at his desk. In March of 1981, M.J. began vomiting and experiencing severe diarrhea. The symptoms were so similar to Michael's that Dr. Miller suspected that M.J. was having psychological problems caused by the serious illness of his son. On April 21, 1981, M.J. Albanese was so ill he was taken to the emergency room and hospitalized. He was released after a few days, but his condition did not improve. M.J. complained of numbness in his hands and feet, and was referred to a neurologist for tests which demonstrated some sensory nerve deficit.
M.J. was hospitalized for the last time on May 9, 1981. He complained of vomiting, pain, and increasing numbness in his hands and feet, and his condition gradually deteriorated. Charles Albanese visited M.J. frequently. Dr. Miller testified that "[t]he one I remember most being there, almost hovering every day, was Charles." M.J. had skim milk at his bedside in order to alleviate the dehydration caused by the severe vomiting and diarrhea.
On May 15, 1981, Charles Albanese called Mr. Fishbein at home in the early morning hours. He told Fishbein that the doctors did not expect M.J. to live very long, and that he should prepare an amendment to the Allied Die Casting Corporation agreement as soon as possible, and get to the hospital. Dr. Miller testified that he was mystified by M.J.'s deterioration and certainly did not expect M.J. to die soon. Charles and Michael Albanese visited M.J. at the hospital that day, and the three men signed an amendment to the shareholder agreement. This agreement promoted Charles to vice-president of Allied Die Casting Corporation. M.J. was in intense pain and strapped to the hospital bed. Michael was in a wheelchair, and he was so crippled he needed his wife's assistance to sign the agreement. M.J. Albanese died in the early morning hours of May 16, 1981. Joerg Pirl, forensic chemist, examined samples of M.J.'s hair and fingernails, and concluded that death was caused by arsenic poisoning, with sublethal doses administered over a four-month period, and a large lethal dose administered immediately prior to death.
Defense counsel theorized that M.J. might have received arsenic poisoning from an octopus meal consumed shortly before entering the hospital. The package of octopus was retrieved, and laboratory tests revealed that the arsenic in the octopus was within normal, nonlethal levels. Arsenic is a compound that is found as a trace element in many food items and in every person.
Laboratory tests revealed the presence of arsenic in the crumbs remaining in M.J.'s cookie jar. Charles Albanese testified that he often ate cookies out of M.J.'s cookie jar, and that he continued to do so after M.J.'s death. Charles was not able to explain how he had escaped the arsenic that had killed his father, nor was he able to satisfactorily explain why the cookie jar was left in his father's credenza. Charles explained that he continued to walk to his father's office every time he wanted a cookie, instead of moving the jar into his own office. Charles claimed there was no room in his office for a cookie jar.
Three kinds of fingerprints were detected on the cookie jar: Michael Albanese's, Charles Albanese's, and a third type that could not be identified. M.J. Albanese was never fingerprinted during his lifetime, so it was impossible to conclusively establish that the third type of fingerprints was his. His body was exhumed, but his fingers were too decomposed to obtain fingerprints.
With M.J. dead, and Michael crippled and at home, Charles Albanese was in sole control of Allied Die Casting Corporation. His financial situation was still very serious and he began selling scrap metal and zinc, property of the corporation, to J.W. Reichel and Sons and to Clearing Smelting Corporation. Charles sold 88,000 pounds of zinc and $9,300 worth of scrap metal in these transactions. Charles insisted that the checks be made out to him personally or to cash, and he would not accept checks made out to Allied Die Casting Corporation. Charles received nearly $40,000 for these transactions. In November of 1981, when police began investigating the mysterious deaths in the Albanese family and visiting Allied Die Casting Corporation, Charles called Edward Cohen at Clearing Smelting and told him, "If anybody calls regarding any of our transactions, you know nothing of it."
Police investigators were unable to discover the presence of arsenic in hair and fingernail samples of employees at Allied Die Casting, or the presence of the poison at the Leisure Village complex. Charles Albanese was arrested in November 1981, shortly before he was to leave for a holiday in Jamaica with his wife and mother. Charles has not contested the theft charges stemming from the sale of the company scrap metal and zinc. His appeal is confined to the counts of murder and attempted murder.
At trial, Joe Reichel, vice-president of J.W. Reichel and Sons in Elkhorn, Wisconsin, testified that he talked with Charles Albanese in the autumn of 1979. Reichel testified that Charles told him he needed something to "get rid" of "some pests around the house." Reichel's company had a small quantity of arsenic which was used for a plating process. Reichel brought Charles a small Tupperware container of arsenic a few weeks after the conversation. Charles requested more arsenic about two weeks later, and Reichel brought Charles a small baby food jar containing arsenic.
Charles Albanese testified that he needed the arsenic because he had recurrent problems with pests around the house. He testified that he put the arsenic out at night near the garbage container because pests had been getting in there at night, and he found garbage strewn all over his lawn. Charles did not adequately explain why he would put a lethal poison out where household pets and children could reach it, rather than obtaining garbage cans with lids instead of the uncovered containers he used as receptacles.
One of Albanese's neighbors, Pat Marshall, testified at trial. She stated that there had been problems with pests in the area, but that the problems did not begin until the spring of 1980. Both Pat Marshall and Virginia Albanese testified that the Albanese's garbage was strewn all over the lawn in the spring of 1980. Thus, Charles Albanese obtained the arsenic at least four months before the garbage and pest problem described by the other witnesses.
Charles testified at trial that he did not poison anyone. He accused his brother Michael of poisoning M.J. Charles further testified that Michael poisoned himself so it would appear that Charles was the criminal. Charles was not able to explain how Michael could have administered the fatal dose to M.J. on May 15, 1981, when Michael was so crippled he could barely hold a pen in his hand.
Charles testified that Michael was the architect of the clandestine sale of zinc and scrap metal. Charles stated that he paid Michael cash because his brother was so crippled he could not sign checks. Charles was unable to explain how his brother signed his paychecks during the period of his most severe paralysis.
Charles denied being present at Allied Die Casting on September 8, 1980, shortly after he was demoted, and the day Michael had his first attack of vomiting. Charles was presented with a series of checks and order forms that he had signed on September 8, 1980, but he explained that he must have put the wrong date on all of the documents and signed them on a different day. Charles could not establish that Michael had seen Mary Lambert and Marion Mueller shortly before their deaths. He conceded that Michael had not profited from the deaths of the two women. When asked who had profited, Charles said, "I did, my wife did."
While Charles was an inmate at McHenry County jail awaiting trial, he made the acquaintance of another inmate, Marty Nathan. Nathan testified that Charles asked him "* * * if I knew anybody that would take care of some people for him * * * and then he said like about some money for like $10,000 on a first payment and like 10 or 20 on a second one. And I took it and — you know, thinking that he meant to have them killed." Nathan testified that Charles wanted to have his brother Michael and Joe Reichel, the man who supplied Charles with arsenic, killed while he was in jail. Nathan did not receive any money from Charles, but Nathan agreed to mail some letters for Charles when he was discharged from prison.
At trial, Charles admitted that he wrote a letter in prison that attempted to implicate Michael in the poisoning deaths and that he had Marty Nathan mail copies of the letter to his mother, his wife, the plant supervisor at Allied Die Casting, and his uncle, Frank Albanese. The letter was admitted into evidence, and stated:
"Joe Reichel and Charles' brother, Mike, he used me to kill those people and set up Charles. The containers Joe gave Charles had powdered sugar with a little arsenic, just enough to get rid of the animals.
Michael almost took too much by trying to make himself look like a victim. The police followed the clues just as we set them up. Mike set up the phony theft. Now they tried to double cross me. That was their first and last mistake they ever made."
Joseph J. Lesk, a document examiner, gave expert testimony concerning this letter. He testified that it was written by Charles Albanese, but that Albanese had tried to disguise his handwriting so it would appear that someone else had written it. Charles did not adequately explain why he attempted to falsify such a letter and then admit in open court that he had written it.
The jury found Charles Albanese guilty as charged and ordered the death penalty after a sentencing hearing. The theft charges are not the subject of this appeal, but the defendant raises 19 issues in support of his argument that the conviction for murder should be overturned and the case remanded for a new trial.
ALLEGED HEARSAY STATEMENTS OF A. DONALD FISHBEIN
Defendant argues that this court should order a new trial because damaging hearsay testimony was introduced by A. Donald Fishbein, attorney for Allied Die Casting Corporation. The allegedly objectionable testimony concerned a meeting of the board of directors on September 4, 1980. Fishbein attempted to describe what M.J. Albanese had said at that meeting, and an objection was raised by the defense attorney. The following statement was made by the trial judge during the course of the sidebar conference:
"I think — you have got a conference here and I think the State is entitled to at least elicit from Mr. Fishbein the fact that M.J. was the one who wanted this change * * * what the change was. Without getting into his conversations as to — as to things in the company. But that isn't going to stop Mr. Fishbein, Mr. Fishbein is subject to your cross-examination and anything he said can come in."
The attorneys continued to argue about the pending objection until they reached the following compromise:
"MR. FLORO [State's Attorney]: Let me ask Mr. Kelly something, Your Honor. Dick, if you don't feel that I can get in M.J.'s conversation, would you object to my ...