Appeal from the Circuit Court of Clark County; the Hon. Paul
C. Komada, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On November 8, 1984, defendant, Fred Grabbe, was charged in the circuit court of Clark County with the July 24, 1981, murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)) of his wife, Charlotte Grabbe, who had disappeared. He was subsequently charged with attempted subornation of perjury (Ill. Rev. Stat. 1981, ch. 38, par. 32-3). After a trial by jury, he was convicted of both offenses on June 24, 1985. On September 11, 1985, he was sentenced to natural-life imprisonment for murder and 120 days' imprisonment for the attempt offense. He has appealed. We reverse and remand for a new trial as to both offenses.
Defendant makes numerous claims of error. We deem it necessary to discuss in detail only his contentions that the evidence was insufficient to support the murder conviction and those which require a new trial. The question of the sufficiency of the evidence is crucial, because, if the evidence did not support a jury determination of his guilt of murder beyond a reasonable doubt, he would be entitled to a reversal without remandment rather than a new trial. The errors which require a new trial are: (1) admission into evidence, over defense objection, of testimony of statements made by defendant that he had committed prior murders; and (2) the refusal to instruct the jury concerning accomplice testimony. Other questioned rulings will be discussed only to the extent necessary to give guidance in regard to retrial.
The evidence was undisputed that the alleged decedent, Charlotte Grabbe, and the defendant, her husband, had lived together on a farm near Marshall in Clark County and that she disappeared on July 24, 1981. Except for testimony of one witness who purported to have seen her from a distance in Terre Haute, Indiana, and a witness who purported to have recognized her voice over a telephone, there was no other evidence of her subsequent existence. Most of the evidence that defendant killed the decedent came from the testimony of Vicki McCalister, a young woman with whom defendant had been keeping company. One other witness testified to a statement made by defendant which could have been interpreted to constitute admission of elements of the offense. The rest of the evidence relied upon in support of the conviction was circumstantial.
McCalister testified to having met the defendant in her mother's tavern some weeks before July 1981. She admitted that she had "dated" defendant and had sexual intercourse with him prior to the disappearance of Charlotte. The evidence indicated that defendant and his wife were having marital problems and dissolution proceedings were in progress. McCalister testified that defendant had indicated a wish to divorce the decedent. McCalister also described a fight that occurred between defendant and decedent at some farm buildings on land owned by defendant and called "Pickens Place" on July 7, 1981. McCalister testified that she spent the day of July 24, 1981, with defendant at Pickens Place.
McCalister testified to the following chain of events which occurred on July 24, 1981. Several times during the afternoon, defendant left for the stated reason of finding where his wife was working in nearby fields so that he could talk to her. Defendant and McCalister then went to a tool shed near a field where he had found Charlotte to be plowing. He told McCalister to stay inside the shed so that his wife would not know she was there. Defendant's truck had been backed into the shed. While defendant was attempting to load a trash barrel on the truck to be taken to McCalister's trailer for her use, he had what appeared to be an epileptic seizure but soon recovered. She had seen this happen to him before. As defendant regained control of himself, they could hear the decedent's tractor getting closer. McCalister heard the tractor pull up to the shed and enter it, and the motor turned off. She heard the decedent and defendant arguing and then heard something fall. She then saw defendant sitting on the decedent and choking her. While choking her, defendant loosened his grasp on her throat several times and then tightened it until she went limp. During this time, defendant stated to McCalister that he "bet" his wife would die with her eyes open while he also told his wife that he "bet" she was now sorry she had given him so much trouble.
McCalister then gave the following explanation of how disposal was made of the victim's body. Defendant immediately put the body in a barrel on his pickup truck and covered it with used inner tubes. At defendant's direction, she drove the victim's automobile to Terre Haute while he was driving the truck. They left the victim's vehicle in Terre Haute. They then eventually returned together to Clark County where they took the body to a secluded place near a river. In the meantime, defendant had injected the body with grease. The body was then covered with diesel fuel and burned. Some remains were thrown in the river that day while others were burned further the next day and then thrown into the river.
Judy Lark testified for the State. She related that she was present during a conversation between her husband, who was deceased at the time of trial, and defendant concerning the decedent's disappearance. She said that approximately one week after Charlotte's disappearance, her husband asked defendant "[w]hat did you do grind her up and feed her to the hogs?" She said that defendant responded "[i]f you know what's good for you, you'll keep your mouth shut, or you'll end up the same way." The jury could properly have interpreted defendant's statement as an admission that he had killed the decedent.
Other evidence had some tendency to corroborate McCalister's version of events. Warren Horsley testified that on July 24, 1981, in an area not far from the alleged scene of the killing, he saw defendant driving a pickup truck followed by Charlotte's car driven by a woman whose hair was lighter than that of Charlotte. Dorothy Dixon gave similar testimony, but both testified that they saw nothing in the bed of the truck. Conflicting expert testimony was presented by the State and by the defendant as to whether Charlotte's body could have been destroyed by burning in the manner described by McCalister. Similarly, conflicting expert testimony was presented as to whether inspection of the trees in the alleged burn site indicated that any petroleum fire had taken place there. In regard to both types of evidence, the jury could have found that of the State to be more convincing.
The testimony concerning defendant's disputes with his wife and that concerning his relationship with McCalister had some probative value in indicating that defendant had a motive to kill Charlotte. Some evidence was presented indicating that Charlotte would have been unlikely to have run away. No evidence was presented that she had taken anything of value with her. She had left her purse at home. Her daughter-in-law testified that she was looking forward to a reunion that was to take place on July 26, 1981.
Defendant testified that he had been staying at Pickens Place on the nights of July 23 and 24, 1981, and that on the 24th, he saw Charlotte at the tool shed and they exchanged angry words. He contended that he drove away in his pickup truck, she followed in her car, and he never saw her again. Defendant presented some evidence that corroborated this testimony, but the major thrust of his case was the impeachment of McCalister's testimony for various reasons. The grounds upon which she could be impeached are discussed in more detail in connection with rulings on instructions. The most important impeachment of her testimony arises because she must be treated as an accomplice, and because she would be able to receive a reward upon defendant's conviction. However, neither her status as an accomplice (People v. Wilson (1977), 66 Ill.2d 346, 362 N.E.2d 291) nor her eligibility for a reward (People v. Williams (1959), 17 Ill.2d 193, 161 N.E.2d 295), necessarily requires a determination that the proof failed.
• 1 Defendant maintains that a conviction based on testimony of a witness who would be paid solely if a conviction is obtained cannot stand. He cites Williamson v. United States (5th Cir. 1962), 311 F.2d 441. There, the witnesses involved had a contingent reward contract entered into before the offense for which the accused was on trial occurred. Here, as we will explain, McCalister could have received a reward if defendant were convicted, but the reward was offered only after the offense was committed. Williamson is not in point, and no Illinois case is cited in support of defendant's contention.
The testimony of McCalister together with the direct evidence arising from the testimony of Judy Lark and the corroborating circumstantial evidence are of sufficient strength that a rational jury could conclude beyond a reasonable doubt that defendant was guilty of the murder. (Jackson v. Virginia (1979), 443 U.S. 307, 61 L.Ed.2d 560, 99 S.Ct. 2781.) Defendant is not entitled to an acquittal. However, the great dependence of the State upon the testimony of a witness as impeachable as McCalister requires us to consider with special care some of defendant's claims of error.
• 2 Over defense objection, McCalister was permitted to testify that during the first night, while Charlotte's body was being burned, defendant told her that he had killed three other people in the past. One killing was stated to have occurred when defendant was about 14 years old. The victim was a person who had killed the defendant's dog. The other killings were apparently stated to have occurred a number of years later, when defendant and another person killed two women because of a dispute over a union matter. In admitting the testimony, the court orally instructed the jury that the evidence was to be considered "solely on the issue of defendant's intent" and not for any other ...