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09/28/88 the People of the State of v. Herbert R. Whitlock

September 28, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

HERBERT R. WHITLOCK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

528 N.E.2d 1371, 174 Ill. App. 3d 749, 124 Ill. Dec. 263 1988.IL.1474

Appeal from the Circuit Court of Edgar County; the Hon. James K. Robinson, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE GREEN delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On May 22, 1987, following a jury trial in the circuit court of Edgar County, defendant Herbert R. Whitlock was convicted of the murder of Karen Rhoads. He was acquitted of the murder of her husband, Dyke Rhoads. Defendant was subsequently sentenced to a term of natural life imprisonment.

Defendant has appealed. Trial counsel filed an appellant's brief on behalf of defendant. The court then allowed that counsel's motion to withdraw. This court advised defendant by mail of his right to counsel and appointed the State Appellate Defender to represent defendant. On defendant's motion, that appointment was vacated. Defendant was given an opportunity to file a brief on his own behalf and defendant filed several documents which we take as briefs. The State then filed an answer brief, and other documents filed by defendant have been taken as reply briefs. Taking the various documents filed on behalf of defendant together, we conclude he contends on appeal that (1) he was not proved guilty beyond a reasonable doubt; (2) the verdict was a compromise; (3) the trial court erred in denying him a preliminary hearing; (4) the trial court did not comply with the statutory requirements in ruling on defendant's motion for substitution of Judge; (5) the trial court erred in denying defendant's motion to discharge the venire; (6) the State failed to respond in good faith to defendant's motion for a bill of particulars; (7) defendant was denied his right to a fair trial by: (a) the trial court's erroneous admission of certain evidence, and (b) prosecutorial misconduct; (8) the trial court erred in refusing to allow actual tape recordings of defendant's prior consistent statements; (9) the jury was not properly instructed; and (10) defendant's sentence of natural life imprisonment was improper.

On March 10, 1987, the grand jury returned indictments charging defendant Whitlock and co-defendant Randy Steidl with the murders of Dyke Rhoads and his wife Karen Rhoads and arson of the Rhoads' residence on July 6, 1986. Prior to trial, the State moved to nol-pros two of the four counts of murder and the arson count.

At trial, Donald Tankerseley, an arson investigator for the Illinois State Fire Marshall, testified that when a fire department arrived at the Rhoads' house in Paris at 4:39 a.m. on July 6, the house had probably been burning for approximately 40 minutes. He said he believed the fire was an "intense, fast fire with a short duration." Sergeant Gary Knight, a crime scene technician with the Illinois State police, testified that the bodies of Karen and Dyke Rhoads had been removed from the house by the fire department, because of a fear the entire house could be burned, including the bodies. He said the crime scene, including the bodies, was damaged by heat, fire, water, and soot, all of which affected his ability to obtain physical evidence. Knight also testified that no latent fingerprints were found anywhere in the house, not even those of the two deceased victims who lived there.

A forensic scientist and a forensic serologist testified that they had examined certain items of physical evidence obtained from the crime scene by Knight and were unable to make any conclusive determinations regarding the identity or type of blood. A "latent print examiner" testified he was unable to find any latent prints on any of the objects which were suitable for comparison purposes. A second forensic scientist testified that he examined head and pubic hairs from both defendants, the decedents, and from the crime scene and concluded that all the human hairs submitted to him were consistent with either Karen or Dyke Rhoads' hair, and no hairs were identified as being consistent with either defendant, Steidl, or any unknown parties.

The primary evidence against the defendant was the testimony of Debra Reinbolt and Darrell Herrington, both of whom testified that they were at the Rhoads' residence on the night the murders were committed.

Reinbolt testified pursuant to a plea agreement whereby she pleaded guilty to concealment of a homicidal death by altering evidence. (Ill. Rev. Stat. 1985, ch. 38, par. 9-3.1.) She admitted she had had a chemical dependency on alcohol and drugs for her entire adult life and, in July 1986, she used codeine, cocaine, marijuana, and alcohol on a regular basis. Reinbolt testified that, on February 16, 1987, she had voluntarily contacted the police and had given a knife to Detective James Parrish which was purportedly the murder weapon.

Reinbolt testified that defendant knew Dyke Rhoads prior to the murders and that she had accompanied defendant on two prior occasions when he had gone to the Rhoads' house to discuss drug deals. She also testified that defendant had referred to Karen Rhoads as his "dream girl" and he had told Reinbolt that Karen had slapped him in response to an obscene suggestion he had made.

Reinbolt further testified that on the weekend prior to the murders: (1) defendant asked to borrow a knife to "take care of some business"; (2) defendant told her Dyke Rhoads "knew too much" and "had to be taken care of"; (3) she overheard Dyke Rhoads tell defendant he "wanted out," and defendant tell Dyke he could not "just get out" of drug deals in that manner; (4) Dyke later returned with some money and told defendant "I'm out"; and (5) defendant told her he was going to get his "dream girl."

Reinbolt then testified that on the night of the murders: (1) she saw defendant, Steidl, Darrell Herrington, and an unknown man together at a bar in Paris; (2) defendant told her they were going to "have some fun" and "take care of some business"; (3) defendant borrowed her red Bic lighter and did not return it; (4) she then drove by herself to the Rhoads' house and went upstairs, where she observed defendant and Steidl stabbing Dyke Rhoads; and (5) she held Karen Rhoads down, and the two men came over to Karen and cut her throat.

Reinbolt said that when she left the bedroom, there was blood all over, and the mattress was at an angle off the bed. She said she remembered a bed sheet being used to wipe up blood and that there was a shower in the basement. She said that the next morning, defendant gave her the knife, which she cleaned. Reinbolt testified that defendant had told her he "kissed and loved" Karen after she was dead. Reinbolt said that in December of 1986, defendant and Steidl gave her money to keep quiet. She said she used the money to make double car payments and double cable TV payments.

Reinbolt's testimony was discredited in part, because of her testimony she had not worked at her job at the Paris Healthcare Center on the evening of July 5 and had either clocked herself in and left or had asked a friend to clock her in and out of work. The person she purportedly asked to clock her in and out testified that, although she had clocked Reinbolt in on occasion, she did not work that night and could not have clocked Reinbolt in or out. However, a nurse's log indicated that Reinbolt had been on duty from 4 p.m. to 12 a.m. on July 5.

Reinbolt's testimony was also discredited by the fact that (1) she changed her story to the police several times before trial; (2) in a wiretap conversation with defendant prior to his arrest, she made statements that were not consistent with her having been present at the scene of the murder; (3) she had a record of criminal convictions; (4) she was an addict; and (5) she was an accomplice.

Reinbolt's testimony was corroborated, however, by (1) Lisa Wheeler, who testified she saw Karen Rhoads slapping an individual about a month prior to the murders; (2) evidence that Reinbolt paid double car and cable TV payments in December; (3) testimony of Jeb Ashley that he and Dyke Rhoads had purchased drugs from defendant; (4) a red Bic lighter that was found near the Rhoads' house after the fire; (5) a broken lamp which Reinbolt testified was inside the door of the bedroom and which was found by a fireman when he entered the room; (6) the autopsy, which revealed the stab wounds were consistent with Reinbolt's testimony; (7) the mattress, which firemen testified was found at an angle to the bed; (8) the position of the bodies in the bedroom; (9) the shower, which a fireman testified was in the basement; (10) the lack of fingerprints in the house, suggesting that objects had been wiped off; and (11) the testimony of the pathologist who performed the autopsies on Karen and Dyke Rhoads. He said the knife which Reinbolt had given police "was compatible" with all of the wounds in both bodies.

Darrell Herrington testified at trial he was an alcoholic and had been drinking extensively on July 5, 1986. He said he was with defendant and Steidl that evening and requested that they drive him home. However, they drove to the house of the victims shortly after midnight. Herrington observed defendant and Steidl arguing with Dyke Rhoads on the porch and then entering Rhoads' house. Herrington indicated he believed he "dozed off" for a few minutes and was awakened by the noise of something breaking. He said he entered the house, heard a woman scream and, when he started up the stairs, he was stopped by Steidl. He said Steidl had a bloody knife in his hands, shoved him back outside and threatened to kill him. He said that defendant then came out of the house and left in the car. According to Herrington, while he was gone, Steidl took him back upstairs and threatened to kill him and his family if he told anyone what he saw. Herrington said he threw a pillow over Karen's face and noticed the mattress was at an angle off the bed. He testified that defendant then returned carrying two jugs of some kind of liquid. Steidl threatened him again, and he ran home. Herrington said he finally went to the police on September 21, 1986, because he was "tired of living with it."

Herrington's testimony was discredited in part by his alcoholism, his admitted intoxication on the night of the murders, and previous convictions for misdemeanor deceptive practices in 1981 and 1982. It was also discredited by his inaccurate description of the car in which he had been riding that night. However, the testimony was corroborated by a fireman's testimony that a pillow was found over Karen's face and that the mattress was not squarely on the bed when they arrived.

Other witnesses for the State included (1) several firemen who testified to the events during the fire and, as indicated, corroborated Reinbolt and Herrington's testimony regarding the murder scene; (2) Jeb Ashley, who corroborated the prior drug transactions between Dyke Rhoads and defendant and testified that both Dyke and Karen were athletic; (3) Carol Arbuckle, defendant's girlfriend during the summer of 1986, who testified that defendant had warned her "something big and bad" was going to happen on the July 4 weekend and later told her that Steidl had been the killer; and (4) Ruth Murphy, a friend of defendant and Steidl, who testified that, in October 1986, defendant was upset and crying about the murders and indicated Karen had been stabbed 26 times and "would have gurgled when she died." Murphy testified that on the night of the murders, she saw Randy Steidl, and he was dressed in long pants.

Although Randy Steidl did not testify, Christy Farris and Nannette Klein testified Steidl was with them and not defendant on the night of the murders. Farris indicated she met Steidl at 9 or 9:30 that night, he left at about 10 or 10:30, to "take care of" some business, and he returned at 12:30 or 1 wearing cutoffs. She said she then stayed in Steidl's apartment until 3 or 3:30 the morning of July 6. She said she was "slightly intoxicated" and fell asleep, but, to her knowledge, Steidl did not leave while she was there. Klein testified, however, she was sitting outside of Steidl's apartment building and saw him leave in his car at about 3 a.m. to "mail an unemployment letter." She said he returned approximately 10 minutes later, and she and Farris went home. Elaine Armstrong, a bartender at Joe's Blue Lounge, testified she saw defendant several times on July 5, and she did not see him with Darrell Herrington on that date. Defendant's daughter, Brittany Whitlock, testified she was with her father on July 4, 1986, and she went water skiing with her father at noon on July 6. She said she could not remember whether she saw her father on July 5.

Nancy Land then testified she was with defendant from approximately 9:15 p.m. on July 5 until between 11:30 and 12:30, when she dropped him off at his parents' house in Paris. She said he was dressed in jeans and a blue "Thousand Trails" T-shirt. Defendant's father testified defendant arrived at his home between 12 and 1 a.m. on July 6 and remained there watching television, until 4:30 a.m., when the father went to bed. Defendant's mother testified that defendant, who had a house in the country, had been living with his parents in the spring of 1986, because he had lost his driver's license following a DUI conviction and could not drive. She also testified that she did defendant's laundry, had picked up the blue "Thousand Trails" T-shirt at defendant's home two or three weeks prior to his trial, and had found no bloodstains on it.

Defendant called other witnesses to discredit the State's witnesses, and, finally, he testified in his own behalf. Defendant denied knowing Dyke and Karen Rhoads, denied visiting the Rhoads' residence, denied knowing where the Rhoads' residence was, and denied any involvement in the murders. He said Dyke and Karen Rhoads never owed him money, and he never sold drugs on credit. Defendant further stated he did not know Debra Reinbolt in July 1986, did not borrow a lighter from her, and denied telling her he had kissed and loved Karen after she was dead. He also said he was dating and was "very much in love" with Carol Arbuckle in July 1986, and denied telling anyone Karen Rhoads was his "dream girl."

Defendant said he met Darrell Herrington in the early 1980's, but after his first encounter, he had not ever spoken with or confided in Herrington. Defendant testified that he did not see Steidl at all on July 5 or 6, 1986, but acknowledged that after the two of them had been questioned regarding the murders on July 9, 1986, he "felt like [he] was considered a suspect." Defendant said he believed he had been accused by Reinbolt and Herrington, because he had been taken out of a public place (a tavern) for questioning, and because of all the rumors involving him in the crime. Finally, defendant said he did not have a valid driver's license in the summer of 1986 and denied having operated a motor vehicle during that time. The State presented rebuttal witnesses Chris Eldredge, Carol Arbuckle, and deputy John Landrum, all of whom testified they had seen defendant driving his car in the summer months of 1986.

Defendant argues the evidence against him was not sufficient to find him guilty of the murder of Karen Rhoads beyond a reasonable doubt. He maintains the jury's finding of not guilty of the murder of Dyke Rhoads is an indication that the verdict was a compromise and that the jury was not convinced beyond a reasonable doubt as to either murder.

Defendant further notes he had three unimpeached alibi witnesses, his father, Nancy Land, and Christy Farris, all of whom indicated they were with defendant and Steidl at some point between 11:30 p.m. and 1 a.m. on July 5 and 6.

However, none of the alibi witnesses accounted for all the time between 11:30 and 1 a.m. Nancy Land said she left defendant at his parents' house "sometime around 11:30 or 12:00." His father testified defendant arrived at his house "between 12:00 and 1:00." Christy Farris indicated she saw Steidl around 10:30 p.m. July 5, and he joined them at another bar between "12:30 [and] 1 o'clock." Finally, Nannette Klein also testified that Steidl joined them "between 12:30 and 1 o'clock."

The State theorized that the murders occurred between 12:15 a.m. and 1 a.m. on July 6, and the fire was started later. None of the alibi witnesses preclude defendant's and Steidl's participation in the murders. Detective James Parrish testified at trial that the distance between (1) the American Legion bar, where Reinbolt said defendant and Steidl had been, and the Rhoads' residence was 1.7 miles and took three minutes to travel by car; (2) the distance between the American Legion bar and Whitlocks' residence was approximately one mile and took approximately two and a quarter minutes to travel by car; (3) the distance between the Rhoads' residence and the Whitlocks' residence was 1.8 miles and took approximately three minutes to travel by car.

In addition, Ruth Murphy testified Steidl had been neatly dressed in long pants when she saw him early in the evening on July 5, but Farris testified that when Steidl returned to the bar between 12:30 and 1 a.m., he was wearing cutoffs. The State argues that gave Steidl time to commit the murders and then go home and change clothes. The State further theorized that, rather than mailing an unemployment letter at 3 a.m. on Sunday morning as he had told Nannette Klein he was doing, he might have used the time to drive by the Rhoads' house to see if it were burning. After Klein and Farris left, the State argued, he could have returned to set the second fire.

Nancy Land's alibi testimony was also not conclusive. She said she dropped defendant at his parents' house between 11:30 and 12:30 a.m. The State argues if it were closer to 11:30, defendant could have walked the five or six blocks to the American Legion bar, met with Steidl, committed the murders, and still have returned to his parents' home before 1 a.m. Moreover, Carol Arbuckle testified that defendant told her, "Don't you know, Randy killed those people," and Ruth Murphy testified that defendant told her if he talked to someone "They'll get me, too."

Defendant maintains the most damaging evidence against him came from two admitted alcoholics, both of whom were intoxicated to some extent at the time of the murders, and their testimony was so incredible and improbable that it must have raised a reasonable doubt.

Defendant cites People v. Pellegrino (1964), 30 Ill. 2d 331, 196 N.E.2d 670, where the supreme court reversed a conviction of murder. There, the conviction was based on the testimony of (1) the victim of a concurrent battery by that defendant, who was "stunned, bleeding and crying" at the time the deceased was beaten to death and who changed her story as to who did the beating; and (2) a woman who was in the fourth week of a seven-week period of drunkenness at the time of the event, could not walk five feet without holding the wall, and did not recognize the person helping the victim from three feet away. The court noted there was nothing in the record to indicate why the battery victim changed her story or on which occasion she was telling the truth. The court found that although the trier of fact's finding on the credibility of witnesses was entitled to great weight, it is not conclusive and concluded the evidence was so unsatisfactory as to raise a reasonable doubt of defendant's guilt.

In People v. Norman (1963), 28 Ill. 2d 77, 190 N.E.2d 819, the court noted, in affirming a conviction for unlawful sale of narcotics, that "[although] the testimony of a narcotics addict must be scrutinized with caution, his testimony may be sufficient to sustain a conviction if credible under the surrounding circumstances." Norman, 28 Ill. 2d at 82, 190 N.E.2d at 822.

It is the jury's function to determine the credibility of the witnesses, the weight to be given their testimony, and inferences to be drawn therefrom. The jury's determination of guilt should not be disturbed on review where, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

Here, Reinbolt and Herrington corroborated each other's testimony, although neither apparently knew at the time that the other was at the scene, and their testimony was corroborated by a number of other, reliable, witnesses. In addition, here, unlike Pellegrino, Reinbolt offered a plausible explanation for changing her story. She was afraid of defendant and Steidl. In addition, prior to entering into the plea agreement, she could have been charged as an accomplice.

Since the testimony of both key prosecution witnesses was corroborated in most significant details by other evidence, the jury could have found the witnesses were credible and worthy of belief and could have found defendant guilty beyond a reasonable doubt.

We next confront defendant's assertion that the verdict finding defendant guilty of the murder of Karen Rhoads and not guilty of the murder of Dyke Rhoads was logically inconsistent and that the conviction of the former murder must be set aside. Since People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, and prior to People v. Spears (1986), 112 Ill. 2d 396, 493 N.E.2d 1030, the case law in this State indicated that in criminal cases, verdicts which were logically inconsistent could stand, as long as they were legally consistent. The effect of Spears is, at least, somewhat uncertain. However, even assuming arguendo that Spears requires the setting aside of verdicts of conviction which are logically inconsistent with verdicts of acquittal returned in the same case, we have no problem with the verdict here.

Defendant emphasizes the strength of Debra Reinbolt's testimony of his participation in the murder of Dyke Rhoads. He points out that when asked "[Who] did you see stab Dyke Rhoads?" Debra Reinbolt responded: "Herbie [Whitlock] and Randy [Steidl]." Defendant contrasts this with Reinbolt's only words tying defendant directly to the murder of Karen Rhoads that "they grabbed ahold of her and cut her." However, Herrington testified that when he entered the house, he heard a woman screaming and Steidl came downstairs immediately while defendant came down later and indicated matters had been "taken care of." Further, Reinbolt and Herrington both indicated Karen's upper body was unclothed, but the first fireman on the scene indicated she was completely naked. Her ...


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