Appeal from the Circuit Court of Jersey County; the Hon.
Howard Lee White, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant Jerry "Mick" Eddington was indicted on May 7, 1981, for the offenses of murder and conspiracy to commit murder. (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(2), 8-2(a).) On November 3, 1981, a jury convicted defendant on the conspiracy count; the trial judge declared a mistrial on the murder count when the jury was unable to reach a verdict. On July 20, 1982, a second jury convicted defendant of the offense of murder. On August 4, 1982, he was sentenced to an extended term of 50 years' imprisonment, and the conspiracy to commit murder charge was dismissed. Defendant appeals from the judgment of the circuit court of Jersey County. We reverse the judgment and remand the cause for a new trial.
Defendant raises the following issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt where the only evidence against him was the extensively impeached testimony of co-defendant Hill, for which there was no significant corroboration, (2) whether the State improperly focused the jurors' attention on his failure to testify by bringing attention to the fact that defendant testified at his prior trial, (3) whether improper remarks made by the State during closing argument, commenting on defendant's failure to call witnesses, misstating the evidence, and defining reasonable doubt to the jury constituted reversible error, and (4) whether the trial court abused its discretion by imposing a 50-year extended term sentence on defendant, in view of the disparity between this sentence and the 30-year sentence imposed on co-defendant Hill.
The State argues that defendant has waived his second and third arguments by his failure to raise these points in a timely post-trial motion. The jury verdict was returned on July 20, 1982, with the sentence entered on August 4, 1982. Also on August 20, the court denied defendant's motion for stay of mittimus. Defendant's post-trial motion was thereafter filed on August 31, 1982, and, after several continuances, argued and denied on October 26, 1982. Notice of this appeal was filed on the latter date. The State contends that since defendant's post-trial motion was not filed within 30 days of the return of the verdict, it was untimely under section 116-1(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 116-1(b)), and, further, since it was filed after the defendant was sentenced and delivered to the penitentiary under a mittimus, that the trial court lacked jurisdiction to consider the motion (see People v. Russo (1962), 24 Ill.2d 311, 181 N.E.2d 103, and People v. Wakeland (1958), 15 Ill.2d 265, 154 N.E.2d 245). The record reflects that on July 20, after the jury returned its verdict and the court set the sentencing hearing for August 4, defense counsel inquired whether he would have 30 days from that date for a post-trial motion, and the court answered affirmatively. Similarly, after pronouncing sentence on August 4, the court advised defendant of his right to file a post-trial motion within 30 days of that date and, if that motion were denied, his right to appeal. At the October 26 hearing on defendant's post-trial motion, defendant presented a motion to dismiss a notice of appeal filed between sentencing and the hearing on the post-trial motion, which motion was allowed without objection by the State. The State fully participated in the ensuing hearing on the post-trial motion.
• 1 Section 116-1(b) of the Code of Criminal Procedure of 1963 requires that a post-trial motion be filed within 30 days following the entry of a finding or the return of a verdict, and failure to file the motion within the allotted time is a ground for its denial. (People v. Colletti (1971), 48 Ill.2d 135, 268 N.E.2d 397.) In People v. Gauwitz (1980), 80 Ill. App.3d 362, 400 N.E.2d 92, although not considering the jurisdictional question herein posed by the State, this court considered a timeliness challenge under section 116-1(b) in similar circumstances. Gauwitz held that where the State participated fully in the argument on the post-trial motion and the question of timeliness was first raised on appeal, the State had waived the timeliness argument. We likewise reject the State's timeliness argument as to the requirements of section 116-1(b).
• 2 The State next argues that the trial court lacked jurisdiction to consider defendant's post-trial motion. In Illinois, the common law rule permitted a trial court to retain jurisdiction over a judgment until the adjournment of the term, except that in criminal cases the trial court lost jurisdiction before the end of the term when the defendant's sentence was executed. Under the practice in this State, when a person accused of a crime was convicted, sentenced, and delivered into the custody of the proper penitentiary officer under a mittimus, the sentence was considered executed and the court lost jurisdiction. That rule was later changed so that the court's jurisdiction ended 30 days from the entry of the judgment, i.e., the entry of judgment as under Supreme Court Rule 606(b) (87 Ill.2d R. 606(b)), rather than the expiration of the term; however, in criminal cases, trial courts lost their jurisdiction as soon as the sentence was executed, if prior to 30 days. Therefore, in criminal cases, the trial court retained jurisdiction to vacate, modify, or set aside a judgment until the sentence was executed, or 30 days after the sentence was imposed, whichever occurred first. (See People v. Hills (1980), 78 Ill.2d 500, 509, 401 N.E.2d 523, 527.) Nevertheless, we find the general rule inapplicable, given the circumstances of this case.
First, this court in People v. Carnes (1975), 30 Ill. App.3d 1030, 332 N.E.2d 674, where the defendant had been sentenced and mittimus issued prior to the time his post-trial motion had been heard and ruled on, stated:
"The practice of ruling on post-trial motions after the imposition of sentence and delivery of defendant into confinement in the penitentiary is an anomaly which creates problems never before called to our attention. The customary practice is for the trial judge to hear and rule on the post-trial motions prior to imposition of sentence, and certainly prior to issuance of mittimus and transfer of the defendant to the penitentiary.
The delay in hearing and ruling on defendant's post-trial motions effectively precluded defendant from prosecuting a direct appeal. It appears that the State's Attorney, defense counsel and the trial judge were unaware of the trial court's loss of jurisdiction. It is manifestly unfair and constitutes a denial of due process to relegate defendant to a position from which only constitutional errors are available to him on appeal from the order denying post-conviction relief. He is, in such a process, effectively denied the right to seek appellate review, on direct appeal, of his claims of error which are not of constitutional magnitude." (30 Ill. App.3d 1030, 1032-33, 332 N.E.2d 674, 676-77.)
This court held that fundamental fairness and the requirements of due process required finding plain error, and reversing and remanding for a new trial. Here, defense counsel argued at the sentencing hearing on August 4, 1982, in support of a motion for stay of mittimus, referring to discussions he had previously had with the court that there was case law saying that the court loses its jurisdiction of defendant once he is in the Department of Corrections. The State objected to the defendant's motion and argued that, since sentence had been imposed, the law required that defendant be transported to the Department of Corrections within three days. The State's Attorney said that if the defendant were needed for post-trial motions, a writ of habeas corpus ad subjiciendum could be prepared and he could be transported back. The trial court, without commenting on the possible loss of its jurisdiction, denied the motion to stay the mittimus, stating that the post-trial motion would be strictly on the record, as a matter of law, and that it would be unnecessary for the defendant to be present for the post-trial motion. The trial judge further stated that, under the circumstances, he believed that the appellate court would consider the fact that the motion to stay mittimus had been denied. Given these circumstances, we believe that, as in Carnes, it would be manifestly unfair to deny defendant the right to seek appellate review, on direct appeal, of his claims of error which are not of a constitutional magnitude.
Second, under the narrow terms of the revestment doctrine, litigants may revest a court which has general jurisdiction over the matter with personal and subject matter jurisdiction over the particular cause after the 30-day period following final judgment during which post-judgment motions must ordinarily be filed. In order for the rule to apply, the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment. Here, in addition to the trial court's representations to defendant and defense counsel with respect to his rights and the time for filing a post-trial motion, and the lack of any objection by the State's Attorney, we note that the record sheet in this case reflects that on September 14, 1982, the State's Attorney moved that the cause be continued for post-trial motions from that date to September 20, 1982. When the post-trial motion was called for hearing on October 26, 1982, the State's Attorney participated fully and without objection. See People v. Kaeding (1983), 98 Ill.2d 237, 456 N.E.2d 11.
As the notice of appeal was filed on the date on which the post-trial motion was heard, notice was timely within the meaning of Supreme Court Rule 606(b) (87 Ill.2d R. 606(b)).
By way of introduction, we first review the persons allegedly involved in the charged offense, and the events as they were to have unfolded.
The case involved the planning of the murder of Timothy Clark, its execution near the end of August 1980, and subsequent efforts to conceal the crime by persons other than defendant. The persons allegedly involved in the murder conspiracy had also been involved in other illicit activity. James Hill was the chief witness for the prosecution. He had been a business major at Southern Illinois University at Edwardsville in 1980. Hill also worked for Metropolitan Insurance Company in Granite City, as a bartender at Stages, a nightclub in East St. Louis, and as supplier for a drug ring which he organized and operated. Harry Stinley, Hill's roommate from May to September 1980, and Robert Bagley, had also been college students. Bagley worked with Hill at Metropolitan Insurance Company in Granite City and at Stages in East St. Louis. Defendant Jerry Eddington was a bartender at Stages. Stinley, Bagley, defendant, and Tim Clark worked for Hill's drug operation.
During the summer of 1980, Hill became interested in Clark's wife, Vicki, and dissatisfied with Clark's failure to promptly pay his debts for drugs and other items. Initially, an insurance fraud scheme was set into play involving the Clarks, Hill, Stinley, and Bagley. Early in August 1980, items from other persons' homes were brought to the Clark residence, pictures were taken, and the items were returned to their respective owners. Clark filed an insurance claim on his renter's policy with Metropolitan Insurance Company. There is no evidence suggesting defendant's participation in this venture.
Hill also developed a plan to murder Tim Clark. This conspiracy began in July 1980, with Hill discussing with Stinley ideas about committing the perfect crime. Hill relied upon Bagley to telephone Clark and offer him a job distributing drugs on the west coast. Bagley, using an alias, made the telephone call, and Stinley went to Clark's apartment to observe Clark's reaction to the phone conversation. Stinley reported back to Bagley and Hill that Clark had taken the bait. Bagley, again using an alias, telephoned Clark later in August to assure Clark's acceptance of the fictitious job and tell him when he would be picked up. When Clark expressed reluctance, Bagley assured him that Hill would accompany a member of the drug organization to meet him. The defendant was not implicated in the planning stages of the murder conspiracy.
According to Hill's testimony, several days before the murder Clark called and cursed him for having an affair with his wife. Hill and Stinley later met Clark's wife at her request. She had a black eye and the side of her face was swollen. Hill told police to bring Ms. Clark and her children to his residence, whereupon they commenced living with Hill.
The murder was allegedly committed on August 28, 1980.
Thereafter, the plan for the perfect crime began to unravel. Stinley dated Tim Clark's sister, Jackie Caminiti, from July to October 1980. After their October breakup, Stinley began reading the Bible and stopped drinking and taking drugs. After Thanksgiving passed with no word from Tim Clark, Jackie filed a missing person's report on November 30, 1980. On December 4, 1980, she told Stinley she had filed the report. In a fit of conscience, Stinley told Jackie what he knew of the plan to kill her brother.
Stinley then told his story to Sergeant John Wiese of the Madison County sheriff's department and to Deputy Steven Nonn. After assurances of immunity from prosecution, Stinley gave a videotaped statement, wherein he said Hill had told him that Hill, "Bo," and defendant were going to pick Clark up and get rid of him. Caminiti's recollection of the circumstances under which her brother left the area tended to confirm Stinley's story.
Stinley agreed to cooperate with authorities, and a court order was obtained on December 5, 1980, to tape conversations between Stinley and Hill. Stinley went to Hill's apartment wearing a body wire and engaged Hill in conversation. Hill named defendant and Bagley but did not give the location of Clark's body. On December 7, 1980, telephone conversations between Stinley and Hill were recorded by the Madison County sheriff's department. Hill informed Stinley that Clark was dead and, because of decomposition, the body could not be identified. Stinley voiced concerns over identification through Clark's dental records and X rays.
On December 10, 1980, Detective Fisher, Madison County sheriff's department, interviewed Hill as a routine check to back up Stinley's story that a police investigation of Clark's disappearance was underway. Hill told Fisher that the last time he saw Clark, he gave Clark a ride and let him off in Granite City near Hill's workplace. Clark had a job somewhere and was carrying his suitcase to catch a ride.
Several days later, a Mr. Parmley threatened Vicki Clark. On December 14, 1980, Hill called Detective Nonn to throw authorities off. He told Nonn of the threats and suggested that he was afraid of Tim Clark's coming back, since he was living with Clark's wife.
About December 15, 1980, Hill and Bagley went to alter Clark's remains near Grafton, Illinois, to preclude identification. They removed the skull but somehow left 11 teeth at the site and did not destroy the skeleton.
On January 23, 1981, warrants were obtained for the arrest of Hill, Vicki Clark, Bagley, and defendant.
On January 24, 1981, police teams executed the arrest warrants, search warrants, and an eavesdrop order. Hill and Vicki Clark were arrested and their apartment searched for items related to the murder and drug sales. Bagley was arrested next. Defendant was arrested later in the day after police monitored a phone conversation wherein Hill informed defendant that he and Bagley had been arrested.
Hill declined to talk to Detectives Fisher and Rushing when he was arrested. After playing part of the taped conversations for Hill, detectives let him make a tape and listen to his voice for comparison. Thereafter, Hill made a statement laying the blame for Clark's disappearance on defendant and an unidentified person. He said he had an idea Clark might have been killed and told authorities he had taken Clark down to a place in Granite City, letting him off with his suitcase. Hill met defendant, drove north of Alton, and let defendant out of the car, returning to pick him up later. Hill and defendant then went drinking in Granite City. Hill acknowledged that he had signed, as true, a typewritten statement, thus "putting the rap" on defendant. He did not recall saying defendant had offered him money to make a phone call to Clark, but said if that was in the statement he assumed he also gave authorities that information.
Clark's remains were located by Lieutenant Robert K. Hertz, Madison County sheriff's department, in a ravine in a rocky area near Grafton. Two .25-caliber projectiles were recovered from the chest cavity. The site around the remains was excavated to a depth of eight to 12 inches and the area thoroughly searched, but no other projectiles or cartridges were found.
On January 26, 1981, Bagley gave police a statement on the advice of his counsel. He told authorities he had been aware of a plan to kill Clark as a result of a drug debt; that he had made several phone calls for Hill to set Clark up; and that he had gone to the remains with Hill on December 15 to remove the head. He told police he had not been present at the time of the murder and that Hill had chopped the skull from the remains in December.
Bagley subsequently told authorities it had been he who chopped the skull from the remains. Bagley was not sentenced until after defendant's second trial.
On May 5, 1981, Hill pleaded guilty to murder, obstructing justice, and unlawful calculated cannabis conspiracy, and entered into a plea agreement under which he was to be sentenced to 30 years' imprisonment on the murder charge, three years on the cannabis charge, and three years on the obstructing charge, all sentences to run concurrently. The State dismissed a case of theft, a case involving solicitation of murder, and other counts of the murder information, and recommended Hill never be incarcerated in a facility where Jerry Eddington is incarcerated. Hill agreed to testify against defendant consistent with a statement he agreed to give authorities. Hill did not have to name his drug contacts. Hill had not been sentenced at the time of defendant's second trial.
On May 12, 1981, Hill's videotaped statement was taken, Hill saying he had been present at the time of Clark's murder and that defendant had shot Clark.
On May 20, 1981, Hill told Detective Nonn that he had shot Clark first with a .25-caliber gun and defendant thereafter had shot Clark twice with a .357.
Defendant was brought to trial later in 1981, and thereafter in this second trial in 1982. In view of the complexity of this case and the nature of our rulings herein, the evidence adduced at defendant's second trial is assembled at length:
First, deputy sheriff Steven Nonn, of the Madison County sheriff's department, described the various phases of the investigation, including much of the above. He testified that Stinley implicated defendant, as well as Hill, in a taped statement on Clark's murder on December 4, 1980; that Bagley implicated defendant, as well as Hill, in his statement of January 26, 1981; and that Hill implicated defendant in his statements.
Nonn testified at length about taped conversations between Hill and Stinley. He said that in the call of December 5, 1980, Stinley first mentioned defendant's name, asking whether Hill or defendant shot Clark. Hill then implicated defendant and said that he would not have had the guts to do it. Stinley acted relieved and suggested this raised Hill in his eyes. Nonn recalled that in the first (of two) taped phone conversations between Stinley and Hill on December 7, 1980, Hill tried to calm Stinley down, telling him he would end up involved and get everyone in trouble by his nervousness. Stinley responded that he just wanted to be sure things would turn out all right. He asked Hill whether everyone else who was involved could be trusted. Hill responded that there was no one else but defendant. Stinley asked whether Hill had talked to defendant lately, and Hill responded that he saw defendant all the time. Stinley asked whether Hill had paid defendant enough to prevent him from talking. Hill said defendant was the person who had done everything, so there was no reason he should say anything. Later on December 7, Stinley again spoke to Hill, and asked Hill whether he was going to call defendant. Hill said he would talk to defendant and was going to see him later. Hill told Stinley that Vicki Clark had talked to Jackie Caminiti and the missing person's report was just routine. Hill referred to a "list" Tim Clark had left behind when he left for the fictitious job. Stinley asked Hill whether he was going to call Bagley. Hill said he was not, since Bagley was not on Clark's "list."
Detective Ronald G. Tune, of the Madison County sheriff's department, testified he executed a search warrant on Hill's residence on January 24, 1981. He recalled drugs and records of the drug sale operation were found. The records were made exhibits at trial.
William Brave, Madison County sheriff's department crime-scene evidence technician, testified identifying items from the scene of Clark's remains, and a .25-caliber pistol and shells taken from defendant's residence.
Stinley, at the time of trial a second lieutenant in the Air Force, testified that Christianity had changed his life. He testified he had been Hill's roommate and thus had met Bagley, Clark, and defendant in 1980. He said Hill had a drug sale operation and Clark had fallen in debt to Hill. Hill told Stinley how frustrated he was over getting Clark's payment and suggested he might have to coerce him into paying. Stinley testified that Hill had concocted the insurance fraud scheme whereunder Clark filed a claim on his renter's insurance. Stinley acknowledged his part in the fraud scheme and said he did not believe defendant had been involved.
Stinley continued, saying that around July 1980, Hill began discussing an elaborate scheme to get rid of Clark. Stinley described Bagley's phone call to set Clark up, and his own visit to Clark's apartment to observe Clark's reaction. Stinley said he believed Hill had mentioned that defendant was to accompany him to meet Clark and get rid of him. On the day Stinley thought Hill carried out his intention to kill Clark, he said defendant came to their apartment and left with Hill. He said as far as he knew they took Bagley's maroon Chrysler Cordoba. He said it had been mentioned to him that Bagley's car would be used. Stinley said he stayed home that night. He recalled that Hill called him later in the evening and said it had been awful and they were going to stay out and get drunk. Stinley had last seen Clark several days earlier. He said he had not believed Clark would be killed until it was over. Stinley testified that several days later, Hill had laughed and said it had been kind of funny the way Tim had begged for his life.
Stinley described going to the police in December 1980 and his taped discussions with Hill on December 5 and 7. A portion of the first December 7 phone call was played before the jury. He said that in the second phone conversation on December 7, Hill had threatened that he could end up the way Tim had if he cracked and told police what he knew. Stinley said he had never talked to defendant about the plan to murder Clark and had known of his involvement only through Hill's statements.
Stinley testified that Bagley's car had previously been used for a drug deal involving himself, Hill, Bagley, and defendant. Stinley and defendant picked up two persons from defendant's house and delivered them to a motel outside Collinsville to sell drugs to Hill.
On cross-examination, Stinley said Vicki Clark and her children had moved into the apartment he shared with Hill prior to the date he thought Tim Clark had been murdered. He said he had been to defendant's house in Cahokia more than once in the summer of 1980. Stinley recalled in cross-examination that in his December videotaped statement to police he had been asked whether he had been told how Clark was to be killed and had answered, "[Hill] told me they were to pick up * * * they were going to * * * him and Bo * * * and Mick * * * alias `Jerry' were to pick up Tim at his house."
Stinley mentioned several guns in his testimony: He said he carried his father's .38-caliber gun on the Collinsville drug deal, and again from the time he went to police in December 1980 until Hill was arrested in January 1981. He also said Hill had mentioned owning a .357 but that he had not seen it.
On redirect examination, the assistant State's Attorney asked Stinley how he had identified defendant for police officers. Stinley had given officers a physical description, told them where defendant lived, that he sold drugs for Hill, and "told them that he used to be * * * I heard from Jim that he used to be in the Wind Tramps," a motorcycle club.
James Hill testified that in the summer of 1980 he was a business student at Southern Illinois University in Edwardsville. His drug sale operation was set up as a business, with people on salary selling drugs for him. He kept records, established weekly times for each to call and meet with him, set a minimum for each to sell, and encouraged them to exceed it by offering bonuses. He said the average weekly "take" of someone selling his minimum amount was between $200 and $350. Hill testified that defendant sold minimum amounts during the summer of 1980. Hill grossed about $300,000 per year in drug sales and took a 20% profit.
Hill testified that defendant set up a large transaction at a motel in Collinsville, wherein Hill purchased a quantity of marijuana for between $9,000 and $11,000 cash. Hill said he talked to defendant four to five days a week and saw him about four times a week in July and August 1980. Hill identified a notebook showing his drug sales from September 15, 1980, through January 22, 1981, as the most recent record of his drug sales to defendant. He had destroyed most of his records, as he was trying to get out of the drug business and anticipated a drug arrest. Hill described the dates and prices of drugs sold to defendant based on his records:
"September 15th quaaludes $975; September 15th, pills $190; 23 September, pills $400; September 27th, pills $190; 27 September, smoke [marijuana] $35; November 5th, pills $150; November 8th, quaaludes $125; December 9th, smoke $205; 16th and the 26th both smoke at $205 each; 3rd of January, smoke $780; 7th of January, smoke $780; 14th of January, smoke $309; 22nd of January, smoke $1420; smoke, 22nd again, $770."
Hill testified that after the summer of 1980, defendant had become an "independent" and had no longer been on salary in his drug organization.
Hill continued, testifying that by the summer of 1980 he had known defendant about a year and a half and Tim Clark since January 1980. Hill thought defendant may have met Clark once at Hill's home when they were there at the same time for several minutes in January or February 1980.
Hill testified that Tim Clark had reduced his drug debt to $150 by August 1980. Clark also owed money borrowed to buy a freezer. Hill further considered Clark in debt for tires he gave Clark to sell which disappeared from Clark's residence, and for $50 he gave Clark to buy items to leave for his new "job." At the time of Clark's disappearance, he owed Hill between $800 and $900, including $400 to $500 interest for money owed at most two to three months. Although Hill expected to recover the money Clark owed through the insurance fraud, he said he decided to kill Clark, because he considered him a threat to his drug business.
Hill testified Stinley first suggested the idea of murdering Clark. He further stated that while rappelling with Clark, Stinley had suggested that they untie the rope and let Clark fall, and he had rejected the idea. Hill said Bagley first suggested the insurance fraud scheme. The testimony of Stinley and Bagley contradicted Hill on such points.
Hill continued, testifying he decided to murder Clark in July 1980: He said he discussed ideas for committing the murder with Stinley and with Bagley. Both assisted him in setting Clark up. Hill asked defendant to go along and kill Clark because he considered him a friend and business acquaintance and trusted no one else. Hill implied there was a possibility of defendant rising in the drug ring, though he never expressed an interest in doing so. Hill said he chose Thursday, August 28, as the date for the murder because it was defendant's night off at Stages. Hill asked defendant for a gun and told him why he wanted it. Defendant said he would take care of it. Hill said he believed defendant knew how to use guns because he talked about hunting and told Hill that when he was in the service in North or South Carolina he had problems with some men related to drugs and had to kill a man.
Hill testified, describing his activities on the day Clark was killed: In the morning, he drove Clark around on errands and returned him to his apartment. Hill then took a final exam, stopped at a nursery and bought Vicki Clark flowers, and exchanged cars with Bagley in the afternoon. Bagley had volunteered his car for use in the murder. On direct examination, Hill said he had taken Bagley's 1977 blue Monte Carlo; on cross-examination he said he had taken Bagley's tan Monte Carlo. Hill said he called defendant in the afternoon "and he said, `I will be over in a half an hour, forty-five minutes.'" Defendant came to Hill's apartment, and the two set off in Bagley's car. They picked Clark up and told him they were going to bury a printing press for the drug organization. Hill directed defendant to a location outside Grafton. Hill continued, testifying that on exiting the car Clark and defendant carried shovels to bury the nonexistent press. Clark led the way down the rocky terrain. Hill said defendant handed him a .25-caliber gun and he shot Clark in the back, the bullet entering around the shoulder. Clark spun around and begged for his life. Hill shot Clark three or four more times. Clark fell to the ground on his back, moaning and unconscious. Hill said defendant then pulled a large bluesteel revolver from his boot, stood near Clark's feet and shot down three or four times. He testified one shot hit Clark's head and each bullet jerked the body from the ground. Hill had defendant remove Clark's wallet for identification reasons, ascended to the car and put the shovels in the trunk. Hill said defendant returned to the ravine and came back to the car within 15 to 20 seconds. Defendant told Hill he had used a .357 with hollow point bullets. Hill said he put the .25-caliber gun on the car seat and told defendant to dispose of the weapons. Defendant and Hill drove to Alton to drink and "establish an alibi." About five minutes after they arrived at a tavern, Hill told defendant he was going next door to call someone locally. Instead, Hill said he called Stinley and told him Clark was dead and they were staying out to get drunk.
Hill also testified as to discussions with Stinley in December 1980. He said that in a phone conversation Stinley asked if he was there when Clark was murdered. Hill said he told Stinley he was in the car.
Hill testified that later in December, while drinking with Bagley, he discussed the possibility of Clark's remains being identified, and they decided to destroy the remains. Bagley was afraid of Hill, however, and requested a gun to carry and a third person, of his choosing, to drive them to and from the site. Hill said he got a .25-caliber gun from defendant, but did not disclose his purpose. Hill gave the gun to Bagley when they went to the remains two or three days later. Bagley and Hill were let off near the site by a Mr. Bachantin. Equipped with a knapsack, machete, charcoal and gasoline, they located the remains. Bagley struck the neck area with the machete several times and put the skull and jawbone in a sack, struck the body several times with the machete, grabbed the sack, and returned to where Hill was watching the road.
Hill testified that although he had never killed anyone else, he could have told Stinley or Bagley that he had. He said he may have said he had access to a gun his father owned. He was unclear on what he had told Bagley about Clark's murder. Hill acknowledged that when he gave authorities his statement in May 1981, Stinley and Bagley had already made numerous statements implicating him, and the only person left which he could use to "get a deal" was the defendant. He said he had not told authorities that he also shot Clark until May 25, 1981. He further acknowledged that in written notes for his lawyer in preparation for his defense, he may have said that he mentioned defendant's name in front of Stinley and then kept it up to avoid repercussions, and he wrote that the defendant had not been present at the murder site.
Dr. Steven Paul Nurenberger testified that he autopsied Clark's remains. He opined that Clark bled to death. He described a hole in the right scapula as made by a small caliber bullet, i.e., a .22- or .25- caliber, and a grazed defect in the dorsal edge of a rib, the only two identifiable gunshot wounds to the bones.
Randall Rushing, an Illinois Department of Law Enforcement special agent, testified that he arrested Hill on January 24, 1981. He said Hill's statement on that date was that he had participated in a plan precipitated by defendant, an associate of a pharmaceutical company, who wanted to have Clark killed because Clark owed defendant money.
Robert L. Bagley testified Hill came to him in mid-July 1980 with a plan to strong-arm Clark into repaying Hill. Hill told Bagley he was involved with Clark's wife. The plan involved calls to pressure Clark by representing themselves as higher-ups in the drug ring. Bagley also became aware of Hill's involvement in Clark's fraudulent insurance claim.
Bagley continued describing his phone calls to set Clark up for the fictitious job distributing drugs: Using an alias, he last called Clark on Monday, around August 25 or 26, and said two people would pick Clark up Wednesday or Thursday around 6 or 6:30. When Clark sounded reluctant, Bagley told him Hill would be there. Bagley told Clark not to tell anyone he was leaving town and to wear new clothes. Bagley testified that at that point, he was aware Hill was going to commit a homicide. Hill had told him that defendant would accompany Hill to get rid of Clark.
Bagley said he owned three cars at various times in 1980. From September 1979 to June 1980, he owned a maroon 1979 Dodge Magnum; from June to October 1980, a tan 1975 Monte Carlo; and from October 1980 to January 1981, a Ford Galaxie 500.
Bagley testified about the day Hill was to pick up Clark: Bagley said he loaned Hill his 1975 tan Monte Carlo in exchange for Hill's new four-cylinder Plymouth. Bagley told Hill he wanted his car back that evening because he had insurance appointments set up. Hill said he would return the car by 7 or 8 p.m. That night Bagley decided not to drive Hill's car to his appointments and canceled one at 6 o'clock in Granite City and one at 9 o'clock in Edwardsville. Bagley said he remained at his apartment with his roommate that evening.
Bagley testified that he reached Hill by phone after midnight and agreed to exchange cars in the morning at Metropolitan Insurance. The next morning Hill said everything was taken care of. He told Bagley that if anyone asked, he had been with Hill and defendant drinking in Edwardsville the previous night.
Bagley continued, testifying that when he showed up for work a few days later at Stages, defendant was working and inquired loudly whether they had not had a good time drinking in Edwardsville the other night. Bagley testified he had never gone out with Hill and defendant as a threesome.
Asked whether he ever talked to defendant about the murder, Bagley testified that he tried to approach the subject at Stages and defendant would never comment about it, but acted as if he understood.
Bagley testified that in September or October 1980, however, Hill told him about the murder one night after work. Hill said he pulled out a .25-caliber gun and shot Clark four times in the back and chest and, when Clark went down, "they" shot him twice with a .357. Bagley said he assumed Hill meant defendant shot Clark with the .357, but admitted he knew nothing of defendant's involvement in the murder except what Hill told him.
Bagley testified, describing his trip to Clark's remains with Hill: He said Hill came to him about the first week in December when Madison County police began investigating Clark's disappearance. Hill had determined that Clark had dental records and said they had to get rid of the evidence. Hill said that, apart from himself and defendant, Bagley was the only one who knew the whole story of Clark's murder the only one who could put Hill in jail. Bagley said that a few days after Clark's murder, Hill told him he had previously killed someone else, without elaborating. Bagley said he had been afraid of Hill. Bagley identified defendant's .25-caliber automatic pistol, People's exhibit No. 24, as that provided by Hill for the trip to Clark's remains. He said he chopped the skull from the neck and put it in a bag without looking at it, striking all over the remains with the machete before they departed. He threw the machete in the river and returned the gun to Hill. Hill disposed of the skull and mandible, telling Bagley he had reduced the skull to ashes and spread them "between Bunker Hill and Caseyville and 157."
Bagley further testified that he spoke to defendant at work about this trip to the remains:
"Q. [By Assistant State's Attorney]: Did you ever talk with the defendant * * * about going up to that body?
A. I never did, sir, no. Mr. Hill did.
Q. Did you ever tell [defendant] that you had gone ...