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10/20/88 the People of the State of v. William Duncan

October 20, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

WILLIAM DUNCAN, APPELLANT



Before assessing the adequacy of the instructions to which the People refer, we wish to observe that, as defendant notes in his supplemental reply brief on remand, his situation with respect to the statement about "Bill" falls "someplace between those two end points of the spectrum" represented by a codefendant's confession explicitly naming a defendant (Bruton) and one that, as redacted, makes no reference at all to a defendant (Richardson). (See People v. Cruz (1988), 121 Ill. 2d 321, 330.) As we noted in our earlier opinion in this cause, for its use at a joint trial to be weighed against a defendant's rights to confrontation, a codefendant's "confession or admission" need not expressly state that a defendant was involved in an offense; it is sufficient that it clearly imply the defendant's guilt when considered in light of other evidence against the defendant. People v. Duncan (1987), 115 Ill. 2d 429, 443 (and cases cited therein).

SUPREME COURT OF ILLINOIS

530 N.E.2d 423, 124 Ill. 2d 400, 125 Ill. Dec. 265 1988.IL.1554

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Whiteside County, the Hon. Edward Keefe, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. JUSTICE MILLER, specially Concurring. MORAN, C.J., joins in this special concurrence.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

On remand, we are again asked to decide whether the trial of defendant, William Duncan, should have been severed from that of his codefendant, Perry Olinger, because testimony about statements by Olinger was admitted although Olinger himself did not testify and thus was not subject to cross-examination regarding the statements. We hold that severance should have been ordered.

Relying partly on Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, this court previously reversed defendant's convictions and remanded for a new trial. (People v. Duncan (1987), 115 Ill. 2d 429.) After the decision was filed, the case of Richardson v. Marsh (1987), 481 U.S. 200, 95 L. Ed. 2d 176, 107 S. Ct. 1702, was decided, which resulted in a limiting interpretation of Bruton. Thereafter, the Supreme Court of the United States granted the People's petition for a writ of certiorari, vacated our judgment, and remanded this cause to us for further consideration in light of Richardson. (Illinois v. Duncan (1987), U.S. , 98 L. Ed. 2d 18, 108 S. Ct. 53.) Such a remand may present us with a suggestion of the Court's tentative views but affords us ample opportunity to demonstrate why our original Disposition was proper. See R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice § 5.12, at 277, 279-80 (6th ed. 1986); 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice & Procedure § 4021, at 689-91 (1977), at 566-67 (Supp. 1987); Hellman, " Granted, Vacated, and Remanded" -- Shedding Light on a Dark Corner of Supreme Court Practice, 67 Judicature 389 (1984).

Upon further consideration, we adhere to our previous views, again reversing and remanding for the reasons that follow. We briefly again set out the facts of the case that underlie our reasoning. They are more fully summarized in our original opinion (115 Ill. 2d 429).

FACTS

Defendant was indicted with Olinger in the circuit court of Whiteside County for crimes of murder, armed robbery, armed violence, and conspiracy (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1, 18-2, 33A-2, 8-2). A jury found the defendants guilty on all counts. Defendant Duncan was sentenced to life imprisonment on the murder counts and 10 years' imprisonment for armed robbery. The circuit court vacated his other convictions. (Olinger was sentenced to death, and we affirmed on direct appeal in People v. Olinger (1986), 112 Ill. 2d 324, cert. denied (1987), 479 U.S. 1101, 94 L. Ed. 2d 180, 107 S. Ct. 1329.)

At the joint trial, Olinger did not testify. Defendant complains that two witnesses' testimony regarding alleged out-of-court statements by Olinger, though properly inculpatory of Olinger, had the effect of inculpating defendant as well because the jury was likely to consider the testimony improperly against him.

The first attribution of statements to Olinger, and their context, occurred as follows.

A witness, Edward Stalder, testified that two nights before the murders, Olinger had approached him about combining to take over the illegal drug traffic in the local area. According to Stalder, Olinger had proposed that in order to seize control of the traffic, they should steal drugs and money from "Jim Adams and a Bill" and "make sure there wasn't [ sic ] any witnesses left." (One of the subsequent murder victims was James Adams, and it was in Adams' house that defendant, William Duncan, was found apparently asleep when Adams' body was discovered.) Stalder also testified that Olinger later repeated his proposal for taking over the drug traffic and that Olinger said that he would obtain the required drug stock from someone who would bring it back from Kansas City.

There was substantial testimony that defendant and Adams had jointly engaged in illegal drug traffic and had purchased drugs from a Kansas City dealer with whom defendant was acquainted. Defendant and two other witnesses also testified that Olinger spent time with defendant in Adams' house on the night of the murder, both while Adams was on the premises and later while Adams was away to sell some drugs at the residence of Randolph Stralow. Stralow testified that Adams received four telephone calls from defendant while Adams was at Stralow's house; on the basis of Adams' alleged report of their contents and reaction to them, the People were later to argue that the calls constituted an attempt to lure Adams home, where he could be killed. Defendant testified that he and Adams had been awake for three days and that, several hours after Adams left for Stralow's ...


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