Before presenting the testimony of Mr. Dare, one of the prosecutors informed the court and defense counsel that the witness was in a feeble condition. The prosecutor sought permission from the trial Judge to ask Mr. Dare leading questions, to have Mr. Dare's social worker present with the prosecutor at the witness stand, and to have Mr. Dare's sister seated in the front of the courtroom so that the witness could see her. The prosecutor explained that having Mr. Dare testify was "somewhat akin to presenting the testimony of a child." Defense counsel responded that a competency hearing should be conducted, if the witness was as the prosecutor had described him. The trial Judge suggested that the witness first be examined in chambers, so that the State's requests regarding the presentation of the witness' testimony could be better assessed. Following a brief recess, however, the prosecutor withdrew her request that Mr. Dare be allowed to testify with any special assistance and said that Mr. Dare's testimony would be presented in the same manner as that of any other witness. Defense counsel continued to believe that an in camera examination of Mr. Dare's competency would be appropriate, given the State's description of the witness. Noting that the State had withdrawn its request for assistance, the trial Judge said to defense counsel:
SUPREME COURT OF ILLINOIS
528 N.E.2d 648, 123 Ill. 2d 387, 123 Ill. Dec. 944 1988.IL.825
Appeal from the Circuit Court of Jefferson County, the Hon. Terrence J. Hopkins, Judge, presiding.
JUSTICE MILLER delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
Following a jury trial in the circuit court of Jefferson County, the defendant, William T. Jones, was convicted of murder, attempted murder, armed robbery, residential burglary, and aggravated battery. The defendant waived his right to a jury for purposes of a death penalty hearing, and the trial Judge sentenced him to death. The defendant's execution was stayed pending direct review by this court. Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d Rules 603, 609(a).
On January 26, 1982, Margaret Dare was found dead and her husband, James Dare, was found severely injured in the living room of their home near Dix, Illinois. Blood stains were visible throughout much of the house, and a number of items, including a television set and a stereo phonograph, were missing. The offenses were discovered around 9 o'clock that morning by Mrs. Dare's sister, Lucy Baker. Baker had gone to the house in response to an inquiry from her aunt, who had been trying, without success, to reach Mrs. Dare on the telephone. Baker entered the house through the back door and found her sister slumped on the living room couch; she was dressed in nightclothes and covered with blood. Mr. Dare was struggling from the couch toward the front door; he too was soaked with blood. Baker summoned an ambulance and notified the Jefferson County sheriff's department. Mr. Dare was in deep shock when paramedics arrived, and they were unable to obtain a blood pressure reading, which signified a massive loss of blood. At a local hospital, the attending physician found a deep stab wound to Mr. Dare's left hip, two small puncture wounds in his chest, lacerations on both hands, and a compound skull fracture. An autopsy of Mrs. Dare revealed nine lacerations to her hands and chest; her death was attributed to massive blood loss resulting from a stab wound to her heart.
The defendant previously was convicted of the offenses here and sentenced to death for the murder of Mrs. Dare; he was granted a new trial in an earlier appeal. (See People v. Jones (1985), 105 Ill. 2d 342.) On remand, the place of trial was changed from Jefferson County to Saline County, and the jury was sequestered during the proceedings. The defendant does not contest the sufficiency of the evidence of his guilt, and for purposes of the Discussion that follows, that evidence is summarized below.
The defendant's wife, Dorothy Jones, testified in the State's behalf at trial. She said that on January 25, 1982, the defendant left the house around 8 p.m. and returned some time after 10 o'clock. He went upstairs, and she heard water running in the bathroom. The defendant left the house again about 10 to 15 minutes later, explaining that he was going over to see two of his friends, Larry Faint and James Jennings. Mrs. Jones said that the defendant called her around 5 o'clock the following morning and said that he was at his sister's house in Decatur. He returned to Mt. Vernon during the evening of January 26. Mrs. Jones also testified that sometime later, in February 1982, she found a blood-stained stocking cap tucked away in her lingerie drawer, and she noticed that the defendant's jacket, which was hanging in their closet, had blood stains on it.
Larry Faint and James Jennings testified that the defendant was at their house sometime after midnight on January 26, 1982, and that the three of them later left for Decatur in the defendant's car. In the backseat were some objects covered with a blanket. The group arrived at the defendant's sister's apartment in Decatur around 5 o'clock that morning. There, the defendant and his sister's boyfriend carried a television set and stereo components into the apartment. The television and stereo had blood on them, and they were cleaned off. Faint testified that they spent that morning and part of the afternoon trying to sell the items; the television was finally sold to a Decatur auction house, where the defendant received $55 in payment. Investigators later traced the television set and were able to identify it, from its serial number, as one that the Dares had bought in May 1981 at a store in Dix.
The defendant's sister, Shirley Jones, testified that the defendant arrived at her apartment around 5 a.m. on January 26. He was accompanied by Faint and Jennings. Jones testified that one of the defendant's fingers was bleeding, and she said that he explained that he had cut it when he slipped and fell on a patch of ice in the parking lot outside her home. Shirley Jones said that a phonograph and television set were brought in to her apartment from the car; she noticed blood on the phonograph.
Faint and Jennings testified that on their return trip with the defendant from Decatur to Mt. Vernon on January 26 they stopped in Centralia; there they tried to sell the phonograph at a bar but were unsuccessful. Faint and Jennings also said that the defendant had appeared at their home on Saturday, January 23, 1982, with a television set, television stand, and several other items. On that occasion the defendant explained to his friends that he was in the process of moving, and he returned for the things the next day.
The State presented evidence of a burglary and theft that occurred at the home of Dorothy Lacey, located near Mt. Vernon, during the evening of January 23, 1982. Mrs. Lacey testified that a number of things were missing from her home following the break-in, including a television set and stand, several pieces of jewelry, and a homemade quilt. Jewelry and a quilt had been found in a search of the defendant's car on January 27, and at trial Mrs. Lacey identified those items as having been taken from her home. The same quilt was identified by Larry Faint as the blanket he had seen in the backseat of the defendant's car during the early-morning trip to Decatur on January 26. A large butcher knife belonging to Mrs. Lacey was discovered in a dish pan in the Dares' kitchen sink; Mrs. Lacey and her daughter were able to identify the knife from a distinctive nick in its handle.
Forensic scientist Andrew Wist testified to certain consistencies between the known blood types of the defendant and Mr. and Mrs. Dare and blood stains found at the crime scene. Wist said that he was able to distinguish among the blood types of the defendant, Mr. Dare, and Mrs. Dare on the basis of two tests: the ABO grouping test, and the PGM enzyme test. The defendant's blood was ABO type B and PGM type 1; Mrs. Dare's blood was ABO type A and PGM type 2 -- 1; Mr. Dare's blood was ABO type B and PGM type 2 -- 1. Wist also provided the frequency of those combinations of blood types in the United States, based on race; according to Wist, 12% of the black population and 6% of the white population share the defendant's combination of ABO and PGM groupings.
Wist analyzed possible blood stains found at the crime scene and in the defendant's car. In most instances, he was able to determine the ABO and PGM characteristics of those samples, and he could therefore conclude whether they were consistent or inconsistent with the blood types of the defendant and the two victims. Wist testified that blood consistent with the defendant's, based on the ABO and PGM tests, was found on the front porch of the Dares' residence and on a number of items inside the house, including a jewelry box, a nightstand, the dust cover of a record turntable, a desk lamp, and the fabric cover of the couch where Mrs. Dare's body was found. Both Faint and Jennings had ABO type O blood, and therefore Wist was able to conclude that they could not have provided the blood that he tested from the crime scene.
Wist also testified to comparisons he made between head hair samples from Mr. and Mrs. Dare and three Caucasian hairs discovered in the backseat area of the defendant's car -- one of those hairs was found on a floor mat, and the other two were found in a washcloth. According to Wist, the hairs from the defendant's car had 13 characteristics in common with the hair standards taken from the Dares, which he said were common types. Wist also testified that he examined the stocking cap and jacket that were found by the defendant's wife in February 1982. Wist was able to determine only that human blood was present on the stocking cap; Wist found several blood stains on the jacket, and one of them was consistent with the defendant's ABO and PGM types.
The defendant testified at trial, and he denied all involvement in the offenses here. The defendant said that during the evening of January 25, 1982, he was at a restaurant in Mt. Vernon, the 12th Street Barbecue Pit, and that he left only once during that period, a little after 10 o'clock, to go home and change his shoes. The restaurant closed shortly after midnight, and at that time the defendant gave a friend a ride home. The defendant testified that he then went to the house where Faint and Jennings lived, arriving between 12:30 and 1 a.m. The defendant wanted to drive to Decatur to visit some family members, but he did not have enough money for both legs of the trip. According to the defendant, Faint suggested that they take some items to Decatur and sell them there to pay for the return trip. Faint then put something in the backseat of the defendant's car, and they left for Decatur.
The defendant said that they arrived in Decatur at his sister's apartment around 5 a.m. He slipped and fell on a patch of ice in the parking lot, reopening a cut on his finger, which, he explained, he had incurred several days earlier while working on his car. A television set and phonograph were removed from the car and taken into his sister's apartment; he did not notice any blood on those items. The television set was sold at an auction store in Decatur later that day, and the defendant explained that the $55 check was made out to him because he was the only one in the group with identification, which the store owner insisted on seeing. They left Decatur around 3 o'clock that afternoon, and on the way back to Mt. Vernon they stopped in Centralia, where an attempt was made to sell the record player. In his testimony, the defendant denied having any role in the break-in and theft at the Lacey house on January 23. He explained that certain items of jewelry found in his car -- and identified by Mrs. Lacey as belonging to her -- were acquired from a friend at Jennings and Faint's house on January 24 in exchange for a bottle of liquor. The defendant also presented several alibi witnesses, who testified that they saw the defendant at the 12th Street Barbecue Pit in Mt. Vernon during the evening of January 25, 1982.
Following the presentation of evidence, the jury returned verdicts finding the defendant guilty of two counts of murder and one count each of attempted murder, armed robbery, residential burglary, and aggravated battery. I A
The defendant first argues that the trial court erred in denying a motion for automatic substitution of Judge made under section 114-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 114-5(a)). Following this court's remand of the cause to the circuit court for retrial, the action was placed once again on the call of Judge Lehman Krause, who had presided at the defendant's first trial on these charges. The defendant made a motion for automatic substitution of Judge, which Judge Krause denied; he believed that the case was not a new one and therefore concluded that the motion was untimely because of his prior rulings on substantive issues in the case and the passage of time. The defendant then filed a motion for leave to file a complaint for a writ of mandamus in this court, seeking to overturn Judge Krause's denial of the automatic-substitution motion. In the exercise of our supervisory authority, we directed Judge Krause to vacate his original order and to allow the motion. The cause was then assigned to Judge Hopkins on July 10, 1985, and two days later, on July 12, the defendant filed a second motion for automatic substitution of Judge under section 114-5(a). Relying on the provision in that statute permitting an accused who is standing trial for a capital offense to name two Judges as prejudiced, the defendant argues here, as he did in the circuit court, that he was not required to name both Judges in the first motion but rather could submit successive motions.
Section 114 -- 5(a) provides:
"Within 10 days after a cause involving only one defendant has been placed on the trial call of a Judge the defendant may move the court in writing for a substitution of that Judge on the ground that such Judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another Judge not named in the motion. The defendant may name only one Judge as prejudiced, pursuant to this section; provided, however, that in a case in which the offense charged is a Class X felony or may be punished by death or life imprisonment, the defendant may name two Judges as prejudiced." Ill. Rev. Stat. 1981, ch. 38, par. 114-5(a).
The defendant asserts that an accused cannot make a meaningful use of the two-Judge option provided by section 114 -- 5(a) unless he already knows the identity of the first two Judges to whom the case would otherwise be assigned. The defendant concludes that upon reassignment of the cause to a new Judge following the granting of a section 114 -- 5(a) motion naming only one Judge as prejudiced, an accused charged with a Class X felony or one punishable by death or life imprisonment should be allowed to make a second motion under the statute.
We believe that the plain language of section 114 -- 5(a) contemplates the making of a single motion, in which a defendant who is charged with a Class X felony or an offense punishable by death or life imprisonment may name either one or two Judges as prejudiced. The statute permits such a defendant to "name two Judges as prejudiced"; it does not say that the defendant may file two motions. Also, the statute provides that "[u]pon the filing of such a motion the court . . . shall transfer it to another Judge not named in the motion," which indicates that the identities of all Judges for whom the defendant seeks substitution would be disclosed in the motion. The defendant's construction of the statute would be contrary to these provisions. Section 114 -- 5(a) formerly permitted all defendants, regardless of the seriousness of the charges, to name two Judges as prejudiced. The former version of the statute provided:
"Within 10 days after a cause involving only one defendant has been placed on the trial call of a Judge the defendant may move the court in writing for a substitution of Judge or any 2 Judges on the ground that such Judge or Judges are so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another court or Judge not named in the motion." (Ill. Rev. Stat. 1977, ch. 38, par. 114-5(a).)
The accepted practice under that provision was to file a single motion. According to the committee comments, "This section allows one motion but the one motion may contain the names of two Judges." (Ill. Ann. Stat., ch. 38, par. 114 -- 5(a), Committee Comments, at 253 (Smith-Hurd 1977); see People v. Rice (1982), 108 Ill. App. 3d 344, 350; People v. Scarpelli (1980), 82 Ill. App. 3d 689, 693; People v. Davis (1977), 54 Ill. App. 3d 517, 524-25.) Effective September 26, 1979, the statute was amended to its present form, with the two-Judge option now limited to defendants standing trial for only the most serious offenses. As the language of the current provision demonstrates, the amendment did not have the additional effect of permitting a defendant to file successive motions, when formerly only a single motion was contemplated. The legislature's retention of the language at issue suggests agreement with the judicial construction of that part of the provision. See People v. Agnew (1985), 105 Ill. 2d 275, 279-80.
Moreover, our interpretation of section 114 -- 5(a) is consistent with the requirements of a companion provision, section 114 -- 5(b), which governs automatic-substitution motions in cases involving multiple defendants. Section 114 -- 5(b) provides:
"Within 24 hours after a motion is made for substitution of Judge in a cause with multiple defendants each defendant shall have the right to move in accordance with subsection (a) of this Section for a substitution of one Judge. The total number of Judges named as prejudiced by all defendants shall not exceed the total number of defendants. The first motion for substitution of Judge in a cause with multiple defendants shall be made within 10 days after the cause has been placed on the trial call of a Judge." (Ill. Rev. Stat. 1985, ch. 38, par. 114-5(b).)
Under this provision, co-defendants may be required to submit their motions for automatic substitution of Judge before they know to whom the case would otherwise be reassigned following the submission of the initial automatic-substitution motion.
We conclude that the defendant was not entitled to make a second automatic-substitution-of-Judge motion and that the trial Judge acted in accordance with the statute in denying the defendant's second motion.
The defendant next contends that the trial Judge erred in permitting James Dare to testify without first conducting a hearing on his competency as a witness. The defendant makes the related contentions that the probative value of Mr. Dare's testimony was outweighed by its prejudicial effect, in light of the witness' mental and physical condition, and that the State withheld from defense counsel certain information that would have cast further doubt on Mr. Dare's competency.
"The argument they made in support of that assistance I can neither affirm nor deny as being a matter of evidence herein. I will permit examination of any witness they choose to call next in their order. If you have a motion you want to make, you make a motion; but you are going to have to support it with the same kind of affidavit that they should have supported anything they said with."
The State then called Mr. Dare to the witness stand. After identifying himself and providing the date of his birth, Mr. Dare said that he used to live on the Texico Road, near the town of Dix, with his wife and son. Asked to recall "that night in January of 1982," Mr. Dare said that he ...