Appeal from the Circuit Court of Cook County, the Hon. James
M. Bailey, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 2, 1985.
Harold Bean, the defendant in this case, was jointly tried in the circuit court of Cook County with co-defendant Robert Byron for a variety of crimes connected with the death of Dorothy Polulach on February 17, 1981. Byron and Bean were both convicted of murder, armed robbery, home invasion, and conspiracy, and Bean was also convicted of solicitation. At a special sentencing hearing convened before the same jury (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)), Byron and Bean were sentenced to death for the murder of Dorothy Polulach. The sentence was stayed pending Bean's appeal directly to this court. (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603.) Because the circuit judge erroneously refused to grant Bean's motion for severance and his repeated motions for mistrial, we reverse and remand for a new trial.
Wayne Walters testified that during 1979, he lived in Ft. Lauderdale, Florida, with his wife Ann. Her father, George Polulach, had divorced Ann's mother and was living in Chicago with his new wife Dorothy. Ann hated Dorothy, and when George committed suicide in 1979, Ann blamed Dorothy for George's death.
Shortly after George's wake, Ann, Wayne, Ann's friend Geri Smith, and Geri's ex-husband Harold Bean were gathered at Smith's home in Chicago, when Bean suggested that he would kill Dorothy for a monetary reward. The subject next arose in May 1980, when Geri Smith and Harold Bean were visiting the Walters at their home in Florida. In June 1980, Bean flew to Florida to discuss the possibility of Bean's burglarizing Dorothy's home. Wayne Walters believed that Bean was suggesting that he would kill Dorothy.
Robert Egan testified that on February 17, 1981, he, his ex-brother-in-law Byron, and Bean left in Bean's car to burglarize Dorothy Polulach's home. Bean was wearing a priest's smock. Egan dropped Bean and Byron a few blocks from the Polulach home and waited. Byron returned alone, removed a gun hidden under the car seat and left. Egan drove down the street and a few minutes later picked up Bean and Byron. The three returned to Byron's house, where they sorted out jewelry taken from Polulach's home and then left in the car. Bean got out of the car and flung the gun from a bridge into a river. Despite repeated searches, the gun was never found. The next day the three drove to a restaurant where Bean placed the priest disguise in a garbage can.
On February 18, Bean returned to Florida, where, Wayne Walters testified, Bean asked for $10,000 to pay off his partners. Wayne gave Bean $50. On Bean's return Egan and Byron picked Bean up at the airport. They stopped to throw a bag of costume jewelry into a river and, according to Egan, Bean described how he entered Dorothy Polulach's home and handcuffed and shot her. In March, Bean again returned to Florida, where the Walters paid him $5,000 which they borrowed from friends. Egan received $1,300 from Bean.
Dorothy Polulach's body was discovered by a neighbor on February 20. In the course of their investigation, two Chicago police officers flew to Florida to interview the Walters, who gave a statement. Wayne returned to Chicago and was told that charges against him would be reduced for cooperating with the State.
The police then went to Byron's home in Chicago and took him into custody, but he would not admit participation. Byron was eventually released on habeas corpus. Byron's ex-wife notified Egan that Byron had been arrested, and Bean and Egan left in a car with Bean's girlfriend, Debra Youngbrandt. She testified that after spending a night in a Chicago hotel, she drove Bean and Egan to Iowa, Missouri, and Nebraska. In Nebraska a local police officer stopped the car for a traffic violation. Egan, who did not have a driver's license, was arrested, and Bean and Youngbrandt left him and returned to Chicago. They abandoned the car in favor of a stolen truck and stolen license plates. Youngbrandt testified that Bean described to her how he killed Dorothy Polulach.
After Youngbrandt returned to Chicago, she gave a statement to the Chicago police which led to the discovery of the hidden truck and to the arrest of Bean, who was hiding in a forest preserve. Byron testified before a grand jury and was arrested as he left the grand jury room.
Before trial, Byron's attorney moved in writing for severance. His main argument was that the evidence against Bean was overwhelming, and that this could not help but be prejudicial to Byron. Byron's defense at trial was an alibi. Two witnesses testified that he was with them until 7 p.m. on the evening of the murder. He noted that no one saw him with Bean and Egan, and that the only evidence against him came from admitted co-conspirators Wayne Walters and Egan and from Youngbrandt, a woman with drug, alcohol, and emotional problems. He claimed that Bean was the murderer and that he, Byron, had never been involved.
Before trial, Bean's attorney orally joined Byron's motion for severance. At the consolidated hearing on the two motions, Bean's attorney stated that Byron's attorney had indicated that Byron's defense would be "an actual attack" on Bean, all the blame for the murder would be placed on Bean, and that Byron's attorney was planning to "unequivocally attack [Bean] in his opening statement." Bean's attorney argued that this would not be a fair atmosphere in which to try his client. He also requested that the circuit judge grant Bean's motion for severance before the trial and thus avoid the necessity of Bean's moving for a mistrial after the opening statement. The motions for severance were denied and the trial began.
In his opening statement, Byron's counsel repeatedly referred to Bean. He stated that "the innocent remain and the guilty flee," noting that Bean left Illinois, but Byron did not. Bean's objection was overruled, although the trial judge later stated that the statement of Byron's counsel regarding the implications of flight was not an accurate statement of the law. Next, Byron's attorney noted that Byron was a logical choice as a scapegoat, since Bean and Byron had previously served in the penitentiary together. Bean's objection was overruled. Finally, Byron's attorney said,
"His Honor * * * told you that the defense need prove nothing in a criminal case. And the defendant need never take the stand, never has to take the stand because the burden of proof is on the State * * *.
But Bob Byron is going to take the witness stand. He is going to testify. Because an innocent man can't wait to tell his story. And a guilty man will never take the stand."
Bean's objection was overruled. Again, Byron's attorney said, "The murderer will never take the stand." Once again, Bean's objection was overruled.
Bean's attorney moved for a mistrial based on the "highly prejudicial, antagonistic, and illegal" opening remarks by Byron's counsel. The motion was denied, and the trial court commented, "Now, I don't know if you and [Byron's counsel] decided you would have [him] do it or not."
During the course of the trial, cross-examination of the State's witnesses by Byron's attorney was highly prejudicial to Bean. Using leading questions, Byron's counsel reiterated the theory that Bean was the murderer and that he perpetrated the crime alone, repeating details of acts which Bean allegedly committed. Byron's counsel not only caused witnesses to repeat testimony detrimental to Bean, but also elicited several new admissions harmful to Bean.
For example, the following colloquy occurred when Byron's counsel cross-examined Wayne Walters:
"Q: Now when you first talked to Harold Bean it was Bean's idea to kill Dorothy, is that right?
Q: And you discussed with him in detail how he was going to accomplish this, is that correct?
Q: And he told you that he was going to get a disguise, right?
[Bean's counsel]: Your Honor, I am objecting to this.
Q: He told you that he was going to get a disguise, ...