Appeal from the Circuit Court of Lake County, the Hon.
Lawrence Inglis, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 30, 1984.
In a jury trial in the circuit court of Lake County, defendant, Charles Albanese, was found guilty of the arsenic-poisoning murder of his mother-in-law, Marion Mueller. Pursuant to section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)), the court conducted a separate sentencing hearing to determine whether a sentence of death should be imposed, and defendant was subsequently sentenced to death. The trial court stayed imposition of the sentence (87 Ill.2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); Ill. Rev. Stat. 1981, ch. 38, par. 9-1(i); 87 Ill.2d R. 603).
The evidence admitted in this case is substantially similar to that introduced in another case involving defendant (see People v. Albanese (1984), 102 Ill.2d 54; hereinafter Albanese I), and will not be discussed in any detail. In Albanese I, defendant was convicted of murdering his father, M.J. Albanese, and his wife's grandmother, Mary Lambert, by arsenic poisoning; the attempted murder of his brother, Michael Albanese, by the same means; and the theft of property from the family business. He was sentenced to death on the murder charges, and we affirmed that judgment in Albanese I. The evidence in this case differs from that admitted there in that, in the guilt phase of this trial, no evidence related to the murder of defendant's father, the attempted murder of his brother, or the theft charges was admitted, and defendant did not testify at this phase, as he did in Albanese I. Also, evidence admitted here pertaining to defendant's scheme to have his cellmate, John Saltz, force Michael Albanese to sign a note confessing to all of the previously mentioned crimes and then murder Michael and his wife was not available at the time of the first trial.
Defendant argues that the evidence presented was insufficient to prove him guilty beyond a reasonable doubt, challenging the sufficiency of the State's evidence that he murdered Marion Mueller to obtain, through his wife, an inheritance that would ease the financial strain he was experiencing. In particular, he disputes the accuracy of the State's evidence assessing his financial condition in 1980, urging the court to adopt calculations he offers here for the first time, which produce an increase in his cash assets and a decrease in expenses. However, as defendant acknowledges, the revised financial data do not alter the result that he overspent his income in 1980. Moreover, his revisions do not detract in any way from the State's evidence summarizing defendant's obligations and arrears in the critical months of July and August of 1980. As for defendant's more general argument that all of the circumstantial evidence submitted failed to prove his guilt beyond a reasonable doubt, we believe, as we stated in Albanese I, that the State has clearly established that Charles Albanese plotted and carried out this murder for financial gain. "A conviction can be sustained upon circumstantial evidence as well as upon direct, and to prove guilt beyond a reasonable doubt does not mean that the jury must disregard the inferences that flow normally from the evidence before it." People v. Williams (1968), 40 Ill.2d 522, 526, cert. denied (1969), 393 U.S. 1123, 22 L.Ed.2d 129, 89 S.Ct. 1004.
Defendant also contends that the State was erroneously permitted to introduce evidence of his financial problems and relies chiefly on People v. Dorr (1931), 346 Ill. 295, to support this proposition. In Dorr, the court stated that evidence of pecuniary embarrassment should have been excluded because: "A person's lack of money or even insolvency, without other incriminating facts or circumstances, does not justify the suspicion that, to improve his financial condition, he will commit one of the graver crimes of violence." (Emphasis added.) 346 Ill. 295, 302.) Defendant did not object at trial or in his post-trial motion to the admission of evidence concerning his strained finances, and thus any claim of error in this regard would normally be considered waived. However, even if there had been no waiver, we find that evidence of defendant's financial problems was properly admitted under the rule in Dorr since there was a considerable amount of other incriminating evidence introduced to support the conclusion that defendant murdered Marion Mueller. That evidence includes defendant's initial denial to McHenry police that he had ever possessed arsenic; his conviction for the murder of Mary Lambert, whose death prior to Marion Mueller's enabled his wife to inherit valuable real estate jointly owned by the two victims; the promptness with which the victims' assets were used to pay defendant's debts; defendant's scheme whereby a former cellmate mailed letters, actually authored by defendant, but written as though from an anonymous third party, which implicated his brother and others in the crimes with which defendant had been charged; and his plot to have his brother murdered after he had been forced to sign a letter confessing to defendant's crimes.
Defendant further argues that evidence of other crimes committed by him, unrelated to the murder of Marion Mueller, was improperly admitted, thereby denying him a fair trial. He maintains that evidence of the following crimes was admitted in error: the attempted murder of his brother, Michael Albanese; theft of property from the family business; wilful withholding of child-support payments; and solicitation of the murder of his brother and sister-in-law. The first two arguments, relating to the admission of evidence of attempted murder and theft, are apparently based on the admission of two exculpatory notes he authored while in jail: a note, supposedly from an anonymous third party, circulated by his cellmate in McHenry County jail, Marty Nathan, and the "suicide" note his cellmate in Lake County jail, John Saltz, was to force defendant's brother to copy. The Nathan note states, in relevant part:
"* * * The container Joe [Reichel] gave Charles had powder[ed] sugar with a little arsenic. Just enough to kill the animals. Mike almost took to[o] much by trying to make himself look like a victim. * * * Mike set up the phoney [sic] theft."
The Saltz note contains the following relevant passage:
"* * * I took arsenic myself to make Chuck look guilty [sic]. But I overdid it and now I'll never be the same. The sale of zinc and scrap was actually my idea. But I had him do it in a way that I could make mom believe Chuck did it alone. * * *"
Since the trial court had granted defendant's motion in limine to exclude any evidence connected with his attempted murder of his brother by use of arsenic or the theft of company property, those facts necessary to fully decipher the meaning of these notes were not before the jury. In the absence of those explanatory facts, it seems to us the information contained in these notes simply does not implicate defendant in either an attempted murder or a theft. Nor is there in this record any evidence that defendant wilfully withheld child-support payments due his former wife; on the contrary, the evidence indicates that he was experiencing a cash shortage which made it impossible for him to comply with the terms of his divorce decree. Although section 1 of the Non-Support of Spouse and Children Act (Ill. Rev. Stat. 1979, ch. 40, par. 1101) makes it a misdemeanor to refuse to support one's children without lawful excuse, decisional law interpreting this statute indicates that inability to pay may provide the lawful excuse contemplated by this section. (See People v. James (1980), 89 Ill. App.3d 157, 159.) Moreover, it is not common knowledge that it is a misdemeanor to neglect support obligations, and jurors were never so advised. Attorney Eugene Buchalter did testify that defendant was seized by the McHenry County sheriff pursuant to a body attachment issued by the court, but he stated that he requested this order so that defendant would appear in court on a rule to show cause. Thus, the first three matters which defendant contends were improperly admitted simply do not constitute evidence that defendant committed other crimes.
It is clear, however, that evidence concerning defendant's solicitation of John Saltz to murder his brother and sister-in-law was before the jury since Saltz testified to this effect. Evidence of collateral crimes is inadmissible if it is relevant merely to establish the defendant's propensity to commit crimes. (People v. Bartall (1983), 98 Ill.2d 294, 309; People v. Lindgren (1980), 79 Ill.2d 129, 137.) The issue then is whether Saltz' testimony was admitted only to establish defendant's reputation as a bad person, deserving of punishment, or whether there was some other, legitimate purpose for its admission. We believe that the solicitation-of-murder evidence was properly before the jury because it represented the ultimate step in defendant's plan to fabricate exculpatory evidence and, as such, constituted evidence of defendant's consciousness of guilt. (See United States v. Rajewski (7th Cir. 1975), 526 F.2d 149, 158.) The scheme to have Saltz force Michael to sign a "suicide" note confessing to defendant's crimes would not have been complete if the two persons who, according to the note, were supposed to be committing suicide out of remorse for their misdeeds, remained alive.
Defendant urges that the trial court erred in permitting Rudolph Schaefer, an accountant who testified for the State as an expert witness, to state, over defendant's objection, his opinion that in July and August of 1980, defendant and Virginia Albanese were in "a very critical financial condition * * *
[a]s evidenced by an acute shortage of cash." Defendant contends that such a statement constituted prejudicial error because it usurped the fact-finding function of the jury and maintains that our resolution of this same question in favor of the State in Albanese I is not controlling here for several reasons. He argues that the expert testimony in this case is distinguishable because it analyzed the Albanese family finances for a shorter time period than in Albanese I; it was not balanced by an expert witness to challenge Schaefer's opinion as in Albanese I; and it had a greater potential to cause prejudicial error here, where the prosecution's case did not include evidence from Albanese I of defendant's convictions for the murder of his father and for the attempted murder of his brother. Although we agree with defendant that the presentation of the expert testimony in the two cases was not identical, the variances do not warrant departing from our holding in Albanese I. We there relied on Miller v. Pillsbury Co. (1965), 33 Ill.2d 514, which states: "[T]he trend is to permit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation. The jury still may accept or reject such testimony." 33 Ill.2d 514, 516.
Defendant next contends that he was denied a fair trial because the prosecutor's closing argument was improper, and he cites five different comments, only one of which was objected to at trial, which he urges constitute reversible error. Any error related to the four comments to which no objections were made would normally be considered waived unless the comments were so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process. (People v. Owens (1984), 102 Ill.2d 88, 104.) We will first examine the four comments to which no objections were made.
Defendant contends that the prosecutor asserted facts not in evidence when he made the following statements:
"Who do the facts show had arsenic? The defendant. Only one other person does any fact [show] had arsenic and that was Joe Reichel, the one who * * * gave it to the defendant. Joe Reichel never met Mary Lambert or Marion Mueller. The only other one with arsenic that never met them and certainly he didn't get anything when they died, like the defendant got $70,000. Could it be contended that Joe Reichel snuck [sic] in to Mary Lambert's house and spread a little arsenic in something and snuck [sic] out? For no reason? No. And he's the only other one that had any arsenic."
In rebuttal, the prosecutor also stated:
"The only evidence you heard of anyone in possession of arsenic was the defendant, Charles Albanese."
Defendant relies upon People v. Beier (1963), 29 Ill.2d 511, 517, for the proposition, which we do not question, that the prosecution may not argue assumptions and statements of fact not based upon any evidence. He maintains that, since at one point the prosecutor identified Joe Reichel as "the only other one that had any arsenic," the argument was improper under Beier because the evidence that Joe Reichel and defendant possessed arsenic did not eliminate the possibility that Virginia Albanese, Michael Albanese, or the victims themselves may also have had access to this substance. Beier only requires the prosecutor to refrain from commenting on facts not in evidence; here, the only evidence concerned with arsenic possession indicated that just two persons, Joe Reichel and defendant, had any. The prosecution was not required to balance its closing argument by mentioning that the State had failed to prove that no other persons possessed arsenic.
Defendant also contends that the prosecution twice misstated the evidence. He urges that one such misstatement occurred when the prosecutor commented that defendant was "in jail" for failure to pay child support. The testimony of Eugene Buchalter, attorney for defendant's former wife, established that he obtained a body attachment for defendant after he had failed to appear at two hearings on a rule to show cause as to why he should not be held in contempt for failure to pay the child support and alimony required by court decree. Attorney Buchalter's testimony also indicated that the sheriff of McHenry County brought defendant into custody and that he was not released until his attorney contacted Mr. Buchalter and persuaded him to ask the court for an order directing the sheriff to do so. The record does not reveal the precise time period defendant was in the sheriff's custody, but it could reasonably have been inferred that defendant was in jail part of the time he was in custody. A prosecutor's statement based on a legitimate inference from the proof does not constitute improper argument. (People v. Owens (1984), 102 Ill.2d 88, 105.) The same rule applies to defendant's contention that the prosecution misstated the facts when he argued that the only source for defendant's funds to pay the overdue child support and alimony was the death of either Marion Mueller or Mary Lambert. The $3,600 payment to defendant's previous wife was made by a check written on August 4, 1980, and post-dated August 15. Defendant cites the testimony of Virginia Albanese as conclusive evidence that the money for this payment came from a loan from a joint bank account she and her mother shared. The testimony of Terry Schetter, assistant cashier at Fox Lake State Bank, and other documentary evidence support the theory that the only source for a loan of this amount at this particular time would have been the close-out, on August 6, 1980, of the joint savings account shared by Mary Lambert and Marion Mueller. Since this loan, or gift, was not made until the date of Mary Lambert's death, the prosecutor could reasonably infer that no funds were available until her demise.
Defendant further asserts that the following rebuttal comments suggested to jurors that he was withholding incriminating evidence:
"He wants to make an issue out of the fact that Frank Lambert had the same symptoms as the deceased in this case. Maybe he knows something that we don't know. Maybe Frank Lambert somehow was at the defendant's house. Maybe Frank Lambert ate something that he shouldn't have at the defendant's house."
This argument, however, was a legitimate response to defense counsel's argument that the State's case against defendant failed to account for the illness of Marion Mueller's brother, Frank Lambert, who was hospitalized for symptoms similar to those suffered by his sister and mother. People v. Dixon (1982), 91 Ill.2d 346, 350-51.
Next, defendant urges that certain of the prosecutor's rebuttal remarks blatantly appealed to the sympathies and fears of jurors. In concluding his rebuttal, the assistant State's Attorney remarked:
"Those two women that died, and the one in this matter, Marion Mueller, lived in a retirement village. They were old, for the most part, but they still had a life left to live, they had friends, they had loved ones, they had their shopping excursions and it's not up to anyone to say someone is to die or when that person is to die. It's not up to Charles Albanese to say there's no more life left for those people because he has financial problems, because he can't handle his problems."
These comments, which dwell upon the evil results of crime, are not improper. See People v. Owens (1984), 102 Ill.2d 88, 105-06, and cases cited therein.
The foregoing comments, to which no trial objections were made, are within the bounds of proper closing argument and fall far short of meeting either of the standards cited in Owens. Accordingly, we turn to the comments to which defendant did object at trial, based on his contention that they amounted to a shifting of the burden of proof. The following exchange occurred during rebuttal:
"MR. DUFFY [assistant State's Attorney]: Counsel would also make an issue out of the fact that there are some things the State cannot introduce in this case. You heard testimony of that over a week. There's no evidence of a first autopsy, he says. There's no protocol, there's no pathologists testifying here. But the defendant, as every defendant in a criminal case, through his counsel has subpoena power and don't for a minute think that if there's one piece of evidence the defendant didn't think would be helpful to him, you wouldn't get to see it. He can subpoena that pathologist if he likes. He can get
MR. KELLY [defense counsel]: Objection. I think he's shifting the burden of proof by his comments.
MR. DUFFY: I'm not shifting, Judge. I'm replying to his argument.
THE COURT: But you can't shift the burden of proof.
MR. DUFFY: I agree. But I'm not.
MR. DUFFY: If those tracings helped him, he can subpoena anybody or any document that he wishes to testify here before you. The tracings aren't going to help. The tracings merely say the same thing that everybody else said. Mr. Principe, the Executive Director of the Northern Illinois Crime Lab
told you that he conducted the tests and he determined the presence of arsenic. The tracing was a documentation that signifies that particular fact."
We are of the opinion that the trial judge did not rule improperly. The comments here differ greatly from those in People v. Weinstein (1966), 35 Ill.2d 467, 469-70, upon which defendant relies. In Weinstein, we reversed and remanded for a new trial because the prosecutor repeatedly stated that it was the burden of the defendant to present evidence creating a reasonable doubt of guilt. The prosecutor here did not state that defendant must provide the evidence that would create a reasonable doubt as to his guilt; rather, he pointed to defendant's failure to submit any evidence that would tend to refute the case against him. Such a comment is within the bounds of proper argument. See People v. Kubat (1983), 94 Ill.2d 437, 497; People v. Blakes (1976), 63 Ill.2d 354, 359-60.
Defendant further argues that excluding jurors pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, results in a jury that is prone to convict, violating defendant's sixth amendment right to an impartial jury made applicable to the States by the fourteenth amendment. Although he acknowledges that our court's decisions have consistently rejected this argument (see, e.g., People v. Albanese (1984), 102 Ill.2d 54, 80; People v. Davis (1983), 95 Ill.2d 1, 18, cert. denied (1983), 464 U.S. 1001, 78 L.Ed.2d 697, 104 S.Ct. 507; People v. Tiller (1982), 94 Ill.2d 303, 322, cert. denied (1983), 461 U.S. 944, 77 L.Ed.2d 1302, 103 S.Ct. 2121-22; People v. Lewis (1981), 88 Ill.2d 129, 147, cert. denied (1982), 456 U.S. 1011, 73 L.Ed.2d 1308, 102 S.Ct. 2307), defendant urges reversal of his conviction on this basis. We see no need for further discussion of this question.
In related arguments, defendant contends that the very process of Witherspoon questioning leads to a more conviction-prone jury because it enables prosecutors to peremptorily remove potential jurors who express tentative opposition to the death penalty in addition to excusing for cause those who unalterably oppose it, and because mere exposure to this type of questioning convinces jurors of defendant's guilt. We cannot accept these arguments without rejecting the very form of questioning which the Supreme Court approved in Witherspoon, a decision recently reaffirmed in Maggio v. Williams (1983), 464 U.S. 46, 78 L.Ed.2d 43, 104 S.Ct. 311, and Adams v. Texas (1980), 448 U.S. 38, 65 L.Ed.2d 581, 100 S.Ct. 2521. Defendant also contends that jurors exposed to the Witherspoon-qualification process become convinced that our criminal justice system disapproves of opposition to the death penalty after seeing others in the venire excused for cause due to an inability to impose a death sentence, thus making this form of punishment appear more appropriate than a prison sentence. He urges that since five prospective jurors and two prospective alternate jurors were excused for cause under Witherspoon and two more members of the venire were peremptorily removed, apparently on related grounds, the jurors selected to serve were so indoctrinated in the correctness of imposing the death penalty that they could not constitute the impartial jury the sixth amendment requires. This argument cannot succeed since, as noted above, the Supreme Court continues to approve Witherspoon questioning. Moreover, the argument is irrelevant here for two reasons. First the court, rather than the jury, made the sentencing decision in this case. Second, the individualized questioning concerning potential imposition of the death penalty and other matters was conducted outside the presence of all other members of the venire so that those selected as jurors did not have the opportunity to listen to juror dismissals for cause on Witherspoon grounds or related peremptory challenges.
Defendant also contends that even if the allegations of error previously examined were deemed harmless when considered individually, their cumulative effect was to deny him a fair trial. Having concluded that none of the points relied upon by defendant constituted error, logic dictates that there is no possibility for cumulative error.
Defendant further argues that he was denied effective assistance of counsel in violation of the sixth amendment due to certain acts or omissions of counsel. He urges that each of these alleged errors was of such magnitude as to satisfy both the standard this court has used to evaluate alleged deficiencies in representation (People v. Greer (1980), 79 Ill.2d 103, 120-21 (actual incompetence of counsel entitles defendant to a new trial if the incompetence created such substantial prejudice that the trial result probably would have been different)) and the standard enunciated in United States ex rel. Williams v. Twomey (7th Cir. 1975), 510 F.2d 634, 641 (sixth amendment entitles defendants to representation that meets minimum standards of professional representation), upon which he relies.
The Supreme Court, in Strickland v. Washington (1984), 466 U.S. ___, 80 L.Ed.2d 674, 104 S.Ct. 2052, recently adopted a standard which appears to combine elements of both Greer and Twomey. The court held that the constitutionally guaranteed assistance of counsel has not been provided if the defendant can prove that counsel's representation fell below an objective standard of reasonableness and that counsel's shortcomings were so serious as to "deprive the defendant of a fair trial, a trial whose result is reliable." (466 U.S. ___, ___, 80 L.Ed.2d 674, 693, 104 S.Ct. 2052, 2064.) The court also indicated a defendant must establish "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (466 U.S. ___, ___, 80 L.Ed.2d 674, 698, 104 S.Ct. 2052, 2068.) Emphasizing that the defendant must prove prejudice, the court stated: "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (466 U.S. ___, ___, 80 L.Ed.2d 674, 692-93, 104 S.Ct. 2052, 2064.) The court also directed that "the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." 466 U.S. ___, ___, 80 L.Ed.2d 674, 694, 104 S.Ct. 2052, 2065.
The court made the following cogent observations:
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac [(1982), 456 U.S. 107, 133-34, 71 L.Ed.2d 783, 804, 102 S.Ct. 1558, 1575]. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' [See Michel v. Louisiana (1968), 350 U.S. 91, 101, 100 L.Ed. 83, 93, 76 S.Ct. 158, 164.] There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases [58 N.Y.U.L. Rev. 299, 343 (1983)].
The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the ...