Appeal from the Circuit Court of Madison County, the Hon.
William E. Johnson, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 2, 1985.
After the defendant, Larry Joe Adams, was found guilty of the murder of pharmacist Eugene Ponder following a jury trial in the circuit court of Madison County, the prosecution asked for a hearing on the question of whether the death penalty should be imposed (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)). Following the hearing, the jury sentenced the defendant to death, and the trial court entered judgment on the verdict. Execution of the sentence was automatically stayed pending direct appeal to this court under Rule 603 (87 Ill.2d R. 603).
Eugene Ponder was a pharmacist who operated the "Prescription Shop" in Alton. Sherry Markham, an employee of Ponder's, was on duty on May 10, 1982, when the defendant entered the Prescription Shop between 4:15 and 4:30 p.m. Responding to his question, Markham told the defendant that the store did not carry protein powder mix. At approximately 5:02 p.m., as Markham was leaving the store for the day, Dr. Stephen Snitzer, a dentist who had an office in the building, came into the store. While the dentist was visiting with Ponder, the defendant returned to the store. The defendant and his sister had been patients of Snitzer's, and Snitzer inquired about his sister's health. After asking Ponder a question regarding a vitamin, the defendant moved to the area where food supplements were displayed. Snitzer left the store, leaving the defendant alone with Ponder. A customer came to the drive-up window of the store about 5:12 p.m. and picked up a prescription from Ponder. That was the last time he was seen alive. At approximately 5:18 p.m., Patricia Howell saw a man looking "very much like" the defendant running "very, very, fast" from the vicinity of the store, with a large paper bag in his hand. She had stopped at an intersection near the store and as she began to proceed again, she had to stop suddenly to avoid hitting the defendant, who ran in front of her car. Howell testified that the defendant was running not simply to avoid her car, but was running "with a purpose."
Mrs. Ponder had the practice of phoning her husband every afternoon around five o'clock. That afternoon she called "shortly after 5," and there was no answer. Mrs. Ponder then drove to the Prescription Shop and, upon entering the store, found the cash register open. She searched the store and found Ponder lying face down on the floor of the furnace room downstairs. Her husband was bleeding, and Mrs. Ponder called the fire department rescue squad.
When the first officer arrived, Ponder was dead. The autopsy showed that he had three bullet wounds, the fatal one being at the right temporal skull. Two other bullets penetrated Ponder's right lateral thorax and right hip, and there was an abrasion on the crown of his head. A ballistic examination showed that the bullets were fired from the same gun, either a .22-caliber Wamo rifle or a .22-caliber Roehm revolver. The murder weapon was never recovered. A fingerprint matching the defendant's was lifted from a bottle containing vitamin tablets that was found near the cash register on the sales counter of the store.
On May 11, the following day, the defendant was brought in for questioning. His Miranda rights were read to him, and he said that he understood them. He agreed to and did make a statement, which was reduced to writing and signed by him. The defendant stated that he visited the Prescription Shop twice. His description of his first visit matched that of the testimony of Sherry Markham. He said that on his second visit to the Prescription Shop he talked with Mr. Ponder about vitamin E, and then purchased a bottle of vitamin E tablets. The tablets in the bottle, according to the defendant, were 500-milligram tablets and the bottle contained 100 tablets. Adams stated that he paid about $4.90 for the bottle. Ponder rang it up on the register, and he left the store. Adams said that as he crossed the street, he had to "start trotting," to avoid being hit by Mrs. Howell's car. He stated that he then hitchhiked to the home of one Shirley McClaine, in East Alton, and left the bottle of vitamin E there. When the defendant's statement was typed, the police asked Adams to take them to Shirley McClaine's home, and he agreed. According to police testimony, Adams changed his mind and declined to take them to McClaine's house. At that time he was charged with murder and armed robbery.
Subsequent investigation disclosed evidence that contradicted parts of Adams' recital of events. There was no sale of $4.90 found on the cash-register tape. No such sale was entered on the sales-tax sheet that applied to vitamins and other nonprescription items. The last entry on the register was a "no sale," which indicated that the cash drawer was opened without a sale taking place. There was testimony that vitamin E is sold in terms of international units, and not in terms of milligrams. The East Alton police assisted in conducting a search for Shirley McClaine, but found no evidence that a person by that name lived in East Alton.
At trial, the defendant denied that he agreed and then later refused to take the police to McClaine's house. He denied ever being asked to lead them to her.
An acquaintance of Adams', James Havis, testified for the People that on April 23, 1982, the defendant stopped him and asked him if he had a gun for sale. He said no, and asked why Adams wanted one. Adams replied that he wanted to commit a robbery at a drugstore where the "dude [would] be there all by himself." Adams told Havis that he was going to get some pills and he knew someone who could "front them off for him." On May 4 or 5, Havis gave Adams a ride home. At this time Adams showed Havis a .22-caliber pistol and offered to sell it to him for $25. Havis declined.
Another acquaintance of Adams, Donald Randall, testified that Adams came to his apartment on the morning of the murder, May 10, 1982. Adams told him he was broke and that he had to "get a hold of some money." He also told Randall that he wanted to obtain "T's and Blues," which are the street names for Talwin, a narcotic, and Piobenzamine. Adams left Randall's apartment and then returned an hour later. This time Adams asked Randall where he could obtain a gun. Randall said he did not know and told Adams, "you must want to rob somebody." Adams replied, "I just want to get ahold of some money * * *. I know a place where I can get ahold of some pills." Another witness testified that he had seen the defendant in the area of Randall's apartment building that morning.
After learning of this from Randall, the police asked a part-time pharmacist of the Prescription Shop, Lynn Crammond, to ascertain whether Talwin was missing. (The store had been closed and locked following the murder.) After checking, Crammond told the police, and she later testified, that there had been Talwins in the store as of May 10, and they were now missing. She stated that no prescriptions for Talwin had been filled in the last year.
Just before or after his first visit to the Prescription Shop, Adams was seen at another store. Two employees of Alton Natural Health Foods testified that the defendant came into the store just before closing time, which was 4:30. He asked about a protein powder mix, and one employee replied that she had not heard of it. There were four or five customers in the store at the time. The defendant "stood around" for a few minutes, and then left the store.
An employee of a car wash located one block from the Prescription Shop testified that between 4:30 and 5 p.m. on the day of the murder, the defendant asked her whether she had a plastic garbage bag. She looked, but could not find one, and Adams left.
The jury found Larry Adams guilty of both murder and armed robbery. A bifurcated sentencing hearing was held on the question of the imposition of the death penalty. In the first phase, Adams was found eligible for the death penalty, as he was found to be over 18 years of age and to have committed murder in the course of a felony. At the second phase, evidence in aggravation and mitigation was considered. The jury returned a verdict finding no mitigating factor or factors sufficient to preclude the imposition of the death sentence.
The defendant first contends that his guilt was not established beyond reasonable doubt. He says that the State's evidence largely corroborates his own version of what occurred. He says that the State's witness Howell placed him outside the store at 5:17 p.m., a time when he says Mrs. White was still talking to Ponder at the drive-up window. A reasonable hypothesis of innocence has been raised, he argues, namely, that the crime was committed after he left the store.
The question of the guilt of an accused is for the trier of fact (People v. Brisbon (1985), 106 Ill.2d 342, 360), and guilt may be shown through circumstantial evidence (People v. Albanese (1984), 102 Ill.2d 54, 76).
A court of review will not set aside a criminal conviction unless the evidence is so unsatisfactory that it creates a reasonable doubt of the defendant's guilt. (People v. Brisbon (1985), 106 Ill.2d 342, 360; People v. Collins (1985), 106 Ill.2d 237, 261; People v. Vriner (1978), 74 Ill.2d 329, 342; People v. Yarbrough (1977), 67 Ill.2d 222, 227.) As we stated recently in another capital case, "it is not the function of this court to retry the defendant." (People v. Collins (1985), 106 Ill.2d 237, 261.) Minor inconsistencies in the testimonies do not, of themselves, create a reasonable doubt. (People v. Brisbon (1985), 106 Ill.2d 342, 360; People v. Thiel (1981), 102 Ill. App.3d 28, 31.) Mrs. White stated that she arrived at the drive-up window at approximately 5:12 p.m., and left approximately 5 minutes later, or 5:17 p.m. Mrs. Howell saw the defendant cross the street at approximately 5:17 or 5:18 p.m. Allowing for some reasonable margin of error in time, this testimony did not, as a matter of law, create a reasonable doubt of guilt. Whether the testimony served to exculpate the defendant was for the jury to decide.
The defendant does not deny that he was in Ponder's store. In dispute is what occurred during the defendant's second visit to the store. There was evidence contradicting the defendant's account of what he purchased in the store, the manner in which he left the store, and where he went after leaving the store. Havis and Randall testified to the defendant's motives for the robbery. There is no sufficient ground to disturb the jury's conclusion that the defendant was guilty beyond reasonable doubt.
The defendant argues that at the guilt phase of the trial the prosecutor made improper comments in closing argument. We observe first that none of the comments were objected to at trial or raised in the motion for a new trial. This, of course, constitutes a waiver of the right to raise the issue on appeal. (People v. Carlson (1980), 79 Ill.2d 564, 576-77.) ...