APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
514 N.E.2d 17, 160 Ill. App. 3d 99, 112 Ill. Dec. 621 1987.IL.1310
Appeal from the Circuit Court of Madison County; the Hon. Charles J. Romani, Jr., Judge, presiding.
JUSTICE HARRISON delivered the opinion of the court. KARNS, P.J., and KASSERMAN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON
Defendant, Susan E. Davidson, was charged by information with murder under the accountability theory, solicitation to commit murder and conspiracy to commit murder. A jury in the circuit court of Madison County found her guilty of all three offenses. The trial court entered convictions on the three guilty verdicts and sentenced defendant to concurrent prison terms of 30 years for murder and 20 years for solicitation, but did not enter sentence on the conspiracy conviction. Defendant contends on appeal (1) the court erred in failing to instruct the jury on self-defense and voluntary manslaughter, (2) defendant was placed in jeopardy twice for the same offense, (3) defendant's equal protection and due process rights were violated, (4) the court erred in failing to remove the prosecutor from the case, (5) the court erred in failing to suppress various documents allegedly written by defendant, (6) the court erred in denying defendant the opportunity to attack the credibility of a defense witness, (7) the State failed to properly allege and prove the offense of solicitation, (8) the State failed to properly allege and prove the offense of conspiracy, (9) the court erred in failing to exclude handwriting exemplars offered by the State, and (10) the court erred in admitting hearsay evidence. For the reasons which follow, we vacate defendant's convictions for solicitation and conspiracy but affirm the conviction and sentence for murder.
The State's evidence showed that defendant was in the midst of an affair with a man named William Gill, that defendant and Gill planned the murder of defendant's husband, Stephen Davidson, and that Gill killed Stephen Davidson on the night of October 31, 1979. There was no effort to prove defendant was at home when her husband was murdered. Gill, in a separate trial prior to defendant's trial, was convicted of voluntary manslaughter, a conviction this court affirmed on appeal. People v. Gill (1982), 106 Ill. App. 3d 1164 (unpublished Rule 23 order).
Police were called to the home of Stephen and Susan Davidson in Godfrey, Illinois, on the night of October 31, 1979, and upon investigation found the body of Stephen Davidson on the floor in a room in the basement of the home. The victim's head, hands and clothes were heavily stained with blood, and there was blood on a wall and on a couch in the room where the body was discovered. Police also found blood on the inside and outside of a garage door. An autopsy determined that Stephen Davidson died from a gunshot wound to the head.
Ronald Tune, a detective with the Madison County sheriff's department, testified that he questioned defendant on the night of the murder at the home of one of defendant's neighbors. Defendant told Tune that she and her daughter, Kimberly, left the house at 5:40 p.m. to go to Kimberly's swimming practice. They left the practice at 7:10 p.m. and returned home at 7:40 p.m. Defendant told Tune her husband was watching television when she left the house and that his only plan was to possibly buy some milk at a local grocery store. She denied being involved in any affair. Later that night at the Alton police department, Tune again questioned defendant. At this time defendant stated that she had met Gill during tennis lessons in March of 1979. She and Gill had arranged meetings with each other in their cars two or three times and had kissed, but she denied engaging in sexual relations with him. Tune questioned defendant a third time later that night at the Alton police department. In this third interview, Tune asked whether defendant had had sexual relations with Gill, and defendant replied that she had done so two or three times. Defendant also told Tune that Gill knew she would be at swimming practice that night. Tune testified that defendant told him she made a phone call from the swimming practice to her home to see if her husband wanted food from a certain restaurant for dinner. She made this call at 7 p.m. and received no answer. Defendant denied being involved in her husband's death.
Sergeant Charles Zukas of the Madison County sheriff's department testified that he went to St. Joseph's Hospital in Alton at 10:30 p.m. on October 31 where he spoke with Gill, who appeared to have an injury to his right hand. Gill told Zukas that he was at the parking lot of a movie theater in Granite City when a man with a knife robbed him. Gill stated that the robber cut him on the right hand, then Gill reached for a .38 caliber Colt revolver which he kept under the seat of his car, but the gun was not there.
Jerry Knight, a Madison County sheriff's deputy, testified that on November 1, 1979, he was at a park along the banks of the Mississippi River with other officers. William Gill was also present. Gill picked up a rock and threw it into the river. Police marked the location and dragged the river until, on November 4, authorities found a Colt revolver with a broken hand grip.
Larry Lorsbach, director of the area State Crime Laboratory, testified that the gun found in the river had a wooden grip which was broken, and that three pieces of wood found under and near the body of Stephen Davidson on the night he was murdered came from the gun found in the river. Lorsbach further testified that spent cartridges found at the Davidson home came from the same variety of gun as the one found in the river.
Robert McGarvey testified for the State that he knew William Gill and that he and Gill were "very close." He knew that Gill carried a .38 caliber Colt revolver, and testified that the gun which had been found in the river appeared to be the one owned by Gill. McGarvey testified that in the summer of 1979, Gill began jogging, losing weight, and wearing better clothes, yet was not as sociable as he had been previously. McGarvey further testified that on November 2, 1979, Gill's estranged wife gave him keys to Gill's apartment because Gill had been arrested. McGarvey and McGarvey's wife went to the apartment to collect Gill's clothes and valuables because the apartment was in a "bad neighborhood." In the process of gathering these items, McGarvey accidentally pushed a cushion off of a couch, allowing him to notice a lump in one of the cushions. He unzipped the cushion and found a white plastic bag inside. The bag contained cards and letters. The McGarveys took the bag and its contents home with them. They then went to see defendant at the funeral home where visitation was being held for Stephen Davidson. When they arrived at the funeral home, defendant approached them, the McGarveys introduced themselves to defendant, then told defendant they had found some letters. Defendant appeared relieved. McGarvey then asked her if she knew Gill was going to her house the night of the murder, and defendant responded affirmatively. McGarvey also asked if defendant knew Gill was going to kill her husband, and according to McGarvey, defendant said, "[Yes] but my God it wasn't supposed to happen that way." She told McGarvey that Gill "was supposed to park his car some distance away, jog to the house, go in through an open door, go into the house, knock him out, put him in the trunk of his car and take him out and make him look like he had an accident." McGarvey testified that defendant said, "I didn't mind him being shot but he was beaten." McGarvey further testified that he and his wife gave the cards and letters to Gill's attorney, Russ Meyer.
McGarvey's wife, Karen McGarvey, also testified. In addition to substantially corroborating the testimony of her husband, she stated that defendant came to their home on November 4, 1979, and said she wanted the letters as a last remembrance of Gill, but Karen McGarvey refused to turn them over to defendant.
The State relied heavily upon the cards and letters found in Gill's apartment, which were written by Gill and defendant to each other, to prove defendant's involvement with the murder. In this correspondence, defendant and Gill discussed their secret meetings, expressed love for each other, and discussed plans to marry in the future. Letters from defendant to Gill referred to fears of going to jail, and also include references to "it" and a "plan," which the State attempted to show were references to the plan to kill Stephen Davidson. The following are excerpts from some of the letters written by defendant to Gill:
"The final outcome of this entire plan is so very important to me, I am very worried that something will go wrong and you and I will get caught."
"When you get back I want you to take a small amount of time to tell me whether your thoughts in regard to whether 'it' will work or not. If not, let's get started on another plan."
"I can see this whole thing blowing up before my face. I will take care of what I need to take care of and low and behold you will be living back at home and somehow she will get her hooks into you and you won't leave. Nice arrangement huh? I will get to spend the rest of my life in jail and you will get to spend the rest of your life with her."
"It then went through my mind that once 'it' is taken care of then the waiting period before we can get married will be like hell."
"Well, the one thing that keeps popping into my mind is that once 'it' is taken care of -- then we will have to start casually seeing each other or bumping into each other and then we can start dating and then after dating for awhile then FINALLY we can get married -- good God that's a long way off."
"Steve is really hyper now about people breaking in our house. The statement he made about trusting no one anywhere and at any time really got to me last night. I just wonder how anyone will get to him now. He has been so very cautious these last few weeks he really mystifies me."
"In the back of my mind what I am trying to prepare you or prepare me for is the fact that you will be able to change your mind and go back to your old life if you decide to or if you want to but the way we have things planned for my end of it there will be no changing of my ...