SUPREME COURT OF ILLINOIS
512 N.E.2d 1213, 117 Ill. 2d 386, 111 Ill. Dec. 576 1987.IL.662
Appeal from the Circuit Court of Marion County, the Hon. Michael R. Weber, Judge, presiding.
JUSTICE SIMON delivered the opinion of the court. CHIEF JUSTICE CLARK, specially Concurring. JUSTICE SIMON joins in Part II of CHIEF JUSTICE CLARK's specially Concurring opinion.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SIMON
L. D. Young, who suffered from a number of serious physical disabilities, including the amputation of both his legs below the knees, was found dead on May 12, 1984, inside his home in rural Marion County. He had been beaten and had also sustained a gunshot to the head from a .22-caliber pistol and another shot to the neck. A pathologist testified that the close-range shot to the head was fatal and that Young did not die from the shot to the neck. Pieces of broken ashtrays were found near Young's body, and blood was detected in various places. A .38-caliber pistol, in a snapped holster, was found underneath his body, and the body had been moved after death. Young's truck, a .22-caliber pistol, and his wallet were missing, and his safe was open when police arrived at the scene.
The police learned from Charlie Voss that he, Larry Foutch, and Richard Cook had discussed burglarizing Young's house both on Wednesday, May 9, and later on Friday, May 11. Voss, Foutch and Cook set out for the victim's house on May 9, although Cook turned back before getting there. Voss and Foutch gained entrance to Young's house on a pretext of needing a ride back to town, they talked with Young, and Young eventually drove them himself. Several hours later, believing that Young had left his house, Voss and Foutch returned to the vicinity but found that Young was still there. On Friday, May 11, after spending considerable time walking around, drinking, and talking, Foutch and Cook determined to return to Young's house to burglarize it; Voss, however, went home.
Acting on Voss' information, the police apprehended Cook. Cook gave a statement to the police implicating himself, the defendant, and Foutch. Cook eventually pleaded guilty to armed robbery and received a sentence of 10 years in return for his testimony.
Cook was the star prosecution witness at the defendant's trial. Cook was a good friend of Voss and had known Larry Foutch for seven or eight years. Cook substantially verified Charlie Voss' testimony as to the pre-existing plan to burglarize Young's house and as to the events of the evening of May 11 up to the time Voss departed. Cook added that he and Foutch had gone to Young's on Thursday, May 10, but left when it appeared that Young was home.
Cook first met the defendant on Friday, May 11 at Hap's Arcade. At some point the defendant was advised of the plan to break into Young's home and, according to Cook, said that if they went there, to pick him up at the Depot Lounge first. Later in the evening, Jerry Patten and his brother, Walter, dropped Foutch, Cook, and the defendant off in the rural area in which Young lived.
Cook testified that, after being dropped off, the three walked down some railroad tracks, cut through a field, and then through an abandoned house, ending up on the road in front of Young's house. They talked over breaking into the house; when car lights appeared they hid behind a tree for several minutes. The three then walked down the road to see if other cars were coming.
When they arrived at Young's house, they again discussed breaking in. Either Foutch or the defendant knocked on Young's door, and a light came on. Young let them into the house after being told they had been stranded in the country by some girls. Young did not have his artificial legs on. Cook tried to make a phone call, but hung up when he could not think of anyone to call. The defendant also attempted to make a phone call.
After they had conversed for about 30 minutes (according to Cook it was 1:30 a.m.), Young suggested that the three could probably get a ride at the Banks Bowl nearby. Foutch, Cook, and the defendant then left the house, but the defendant asked to use the phone again, and he and Foutch reentered. Cook was standing in the road and heard "scuffling" from inside the house. After about two minutes, he heard two gunshots. The defendant came running out, followed by Foutch. There was blood on the defendant, and he was carrying a gun. One of the two told Cook that Young was dead, and they all three ran across a field until they hit an electric fence. The defendant suggested that they go back to wipe off fingerprints and get the money. When Cook said he did not want any part of it, the defendant put the gun to his head, but Foutch talked him out of doing anything.
According to Cook, they returned to Young's house and attempted to remove fingerprints. The defendant grabbed Young's wallet and keys and opened the safe, which turned out to be empty. Foutch went through the victim's dresser and took some coins. The three then took Young's truck. After they had proceeded about a mile, the defendant stated that he had left his jacket and sunglasses at the scene, and they once again returned to Young's house. After the defendant secured those items, they left the scene.
Prior to trial, the defendant moved to prevent Cook from reciting any hearsay statements made to him by Foutch the day after the incident on the grounds that such declarations were not within the co-conspirator exception to the hearsay rule and that their admission would deprive the defendant of his sixth amendment right to confront Foutch. The trial Judge denied the motion in limine. Cook was permitted to testify that he saw Foutch the day after the killing, and told Foutch that if questioned by the police, he "wasn't going to hold nothing back." Foutch told him not to talk and advised him to be calm. Foutch then related what happened inside Young's house after Cook had left. As repeated by Cook at trial, Foutch said that the defendant had kicked Young in the head and then wrestled with him. Foutch hit Young on the head with an ashtray. Foutch then took a gun and shot Young once. The defendant obtained the gun and "finished him off" by putting the gun to Young's head and firing. Cook testified that Foutch told him Young was still alive after the first shot.
Foutch, who pleaded guilty in a separate proceeding, did not testify at the defendant's trial. In addition to Cook, various police officers and forensic experts testified, and the State also called Hershel Hull, who worked for Young and who discovered his body on May 12. Hull stated that several weeks before the killing, the defendant and Foutch had come to his house attempting to sell him "some stuff."
Several defense witnesses placed the defendant at a party on the evening of May 11, but this testimony was not inconsistent with the defendant being at Young's house at the time of the killing. James Miller, a friend of both Foutch and Cook, testified that, while he was in jail with Cook, Cook told him that it was Foutch who came out of Young's house carrying the gun and Foutch who subsequently put the gun to Cook's head.
The defendant also testified. He stated that he met Foutch for the first time on the evening of May 11 when Foutch and others gave him a ride to the Depot Lounge. According to the defendant, Foutch returned to the Depot a short time later and asked him whether he wanted to "go cruising" to Young's house to pick up some money that Young owed Foutch. After the Pattens let them out of the car, the defendant, Foutch, and Cook walked up the road to Young's house. Young admitted them to the house, and Foutch and the defendant then conversed with him. After Cook and the defendant attempted to make phone calls, Young suggested they try getting a ride at the Banks Bowl. Cook walked out of the house. After Young refused Foutch's request to give them a ride, Foutch kicked Young in the head. When the defendant bent down to help Young, Young grabbed him and started wrestling with him. Foutch kicked Young and hit him over the head ...