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People v. Olinger

OPINION FILED APRIL 18, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

PERRY OLINGER, APPELLANT.



Appeal from the Circuit Court of Whiteside County, the Hon. Edward Keefe, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 2, 1986.

Defendant, Perry Olinger, and a co-defendant, William Duncan, were convicted by a Whiteside County jury of the murders of James Adams, Gordon Stevens and Debbie Bushman. The two were also convicted of armed robbery, armed violence, and conspiracy. Duncan and defendant both waived a jury for sentencing, and a separate hearing was held before the trial court. The court sentenced Duncan to life in prison and sentenced defendant to death. Defendant appealed directly to this court, as a matter of right. Ill. Const. 1970, art. VI, sec. 4(b). See also Ill. Rev. Stat. 1983, ch. 38, par. 9-1(i); 87 Ill.2d R. 603.

Defendant raises 16 issues on appeal: (1) Did the court improperly refuse to allow into evidence exculpatory portions of defendant's statements when other portions of those statements were used by the State? (2) Did defendant validly waive a potential conflict of interest between himself and his attorney? (3) Should a mistrial have been declared when the State erroneously attempted to impeach a defense witness with a nonexistent prior statement? (4) Was the defendant denied due process by the State's failure to disclose certain information? (5) Was it error to refuse defendant's motion for a change of venue? (6) Was it error to exclude prospective jurors who could not vote for the death penalty? (7) Did the court improperly refuse to sever defendant's trial from that of his co-defendant? (8) Did the court err in allowing hearsay evidence as to the state of mind of one of the victims prior to his murder? (9) Did allegedly improper remarks by the prosecutors during closing argument deprive defendant of a fair trial? (10) Did the trial court fail to exercise its discretion to allow the jury to see transcripts of certain testimony? (11) Was it error to refuse the second paragraph of the Illinois pattern jury instruction on circumstantial evidence? (12) Did the court, in sentencing, rely on aggravating factors which were not proved? (13) Did the court place an improper burden on defendant to prove that the death penalty does not apply? (14) Did the court fail to consider relevant mitigating factors? (15) Is the Illinois death penalty statute unconstitutional because, defendant says, it requires the defendant to prove that death is inappropriate and because, defendant claims, it gives no guidelines as to when the prosecutor should seek the death penalty? and (16) Does the Illinois death penalty statute fail to narrow to a unique and cognizable group those persons eligible for the death penalty?

On May 25, 1982, James Adams was found dead in his home in Rock Falls, Whiteside County, the victim of knife wounds on his neck and throat. On the same day Gordon Stevens and Debbie Bushman were found dead in their home in nearby Sterling, each having been shot once in the head. On October 28, 1982, after a five-month investigation, defendant and a co-defendant, William Duncan, were charged by indictment with the three murders. The indictment also charged both with armed robbery, armed violence, and conspiracy.

Prior to trial, defendant moved for a change of venue from Whiteside County, alleging that the extensive pretrial publicity would prevent a fair trial. The motion was denied. Defendant also filed several motions for severance, alleging that he and Duncan had antagonistic defenses. These motions were also denied.

At trial the State's evidence disclosed that the body of James Adams was found by his girlfriend, Tina Taber, at about 10 a.m. on May 25, 1982. Taber also discovered Duncan asleep on a couch several feet from Adams' body. An autopsy showed that Adams had been cut on the face and the throat, and had been struck on the head with a blunt instrument.

At about 11:30 a.m. on the same day, Susan Neuman, a friend of Stevens and Bushman, discovered the bodies of the two dead in their home. Neuman testified that she found the door ajar, although Stevens and Bushman never left the door unlocked. Both Neuman and another witness, Jeff Allen, testified that Stevens and Bushman always kept their doors locked, and that when someone came to their door Stevens or Bushman would look out the window before allowing the person entry. Allen testified that Stevens had been well acquainted with defendant and had engaged in past drug dealings with him. Investigators at the Stevens/Bushman residence found no signs of forced entry.

Witnesses also detailed the movements of Adams, Duncan, and defendant on the days preceding the murders. On May 23, 1982, Duncan and Adams had traveled to Kansas City, Missouri, to purchase drugs from an acquaintance of Duncan's. All of the purchase money was supplied by Adams. Upon their return to Adams' house on May 24, Adams placed several phone calls "to get out the word" that he had cocaine available. Defendant came to Adams' house and attempted to purchase cocaine on credit, offering to leave a .45-caliber revolver as collateral, but Adams refused the offer. Later, defendant returned and purchased cocaine on credit, leaving a high-powered rifle as collateral. Meanwhile Adams, Duncan, and several other persons consumed cocaine at Adams' house throughout the day on May 24.

Early on the morning of May 25, Adams left his house and went to Randy Stralow's house. Defendant returned to Adams' house, where Duncan was staying. Duncan and defendant consumed cocaine for several hours. During this time Duncan telephoned Stralow's house four times, talking to Adams each time. The first call, at about 2:30 a.m., Duncan inquired when Adams would return. The second call, about 3:30 a.m., Duncan informed Adams that Adams' dog, Brutus, had run off when he was let outside. Defendant and his girlfriend, Rhonda Odquist, then went out to try to find Brutus and filed a report on the missing dog at the Rock Falls police station. About an hour later they found Brutus and returned him home, and Duncan called Adams for the third time and informed him that Brutus had returned. Defendant left Adams' house sometime around 5 a.m., and Duncan made a fourth call to Adams, again asking Adams when he would return.

Stralow testified that Adams had had about $1,800 on his person that morning, and Adams had counted it several times. Adams left Stralow's house with the money at about 7 a.m. No money was found on Adams' body or in his house after the murder.

The State also introduced evidence as to statements made by defendant to police and to the grand jury. Defendant had mentioned that he, Adams, and Stevens had been a "drug triangle," each helping the others to sell drugs when they had some available. He also admitted to a burglary on May 22, 1982, where several pistols were stolen from the house of a man named Dennis Burris. The court, however, refused to let defendant on cross-examination bring out additional exculpatory portions of the same statements.

Although the weapon which killed Stevens and Bushman was never recovered, the State linked the murder weapon to the Burris burglary. Burris testified that he had shot a dog with a .22 magnum, one of the stolen pistols, prior to the burglary. The dog's body was exhumed and, according to the State's firearms expert, the bullets found in the dog were fired from the same gun as the bullets found in Stevens and Bushman.

Two witnesses, Darrell Onken and Edward Stalder, also testified to the Burris burglary. Onken testified that on May 22 he, Stalder, and defendant were drinking at a local tavern. They all talked about how they had little money, including defendant. They decided to commit a burglary and drove to the Burris residence. Onken stood lookout while Stalder and defendant went into the house. They returned with a "gunny sack," although Onken did not see what was in the sack. Onken testified that he did not receive any proceeds from the burglary and did not know what, if anything, the other two participants received.

Stalder also confirmed that the three had been in a local bar talking about their lack of money before deciding to commit a burglary. Stalder testified that they stole several pistols including the .22 magnum, a .38-caliber pistol, and two black powder pistols. Stalder eventually took the .38 and the two black powder guns but claimed that he did not receive the .22 magnum which was eventually linked to the Stevens and Bushman murders.

Stalder also testified that while driving around after dropping off Onken, defendant asked him to join in "taking over" the Whiteside County drug business. According to Stalder defendant suggested that he and Stalder steal drugs from Adams and Duncan and "make sure there wasn't any witnesses left." Stalder said that he declined this offer.

The State also offered testimony to show that after the murders defendant, who was unemployed, had large amounts of money. One witness said that on the day after the murder defendant paid a gas station bill with a $100 bill. Another witness, Patty Doyle, said that defendant had a "large wad" of bills a few days after the murder. Doyle also testified that when she talked to defendant about the murders defendant said that "Jim [Adams] said all the coke was left at Randy's [Stralow]."

Defendant's mother testified on his behalf. She stated that defendant had received a large amount of money from a bank loan on May 6, 1982. Defendant's girlfriend, Rhonda Odquist, testified that about 6:45 a.m. on May 25 defendant left his house to go fishing, returning at about 7:30 or 8 a.m. Another witness said that he saw defendant's truck near a fishing canal at about 7 a.m. on May 25.

Other witnesses for defendant testified that they saw persons who did not look like defendant in front of the Stevens/Bushman residence at various times on the morning of May 25.

Duncan's case included Duncan's own testimony as to the trip to Kansas City and the events prior to the murders. He claimed that about 5:30 a.m. on May 25 he had taken a capsule containing sinequon, an antidepressant drug which can induce deep sleep. At the police's request Duncan had had a blood test on May 25, at about 3 p.m., and the results had revealed the presence of sinequon in his system. The expert witnesses, however, could not specify when Duncan had taken the sinequon or how much he had taken.

We initially address defendant's argument that he was improperly precluded from bringing out exculpatory portions of his statements to the police and the grand jury. The State introduced a portion of those statements, including the statement that defendant, Adams, and Stevens were a "drug triangle," and defendant's admission that he took part in the Burris burglary. Citing People v. Weaver (1982), 92 Ill.2d 545, defendant argues that when part of a statement is admitted into evidence a defendant has the right to introduce the rest of the statement. This sweeping assertion, however, goes far beyond the Weaver decision. In Weaver the additional details which defendant sought to introduce were necessary to prevent the jury from being misled by the portion of the statement introduced by the State. The Weaver ...


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