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10/25/89 the People of the State of v. Larry Eyler

October 25, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

LARRY EYLER, APPELLANT



SUPREME COURT OF ILLINOIS

549 N.E.2d 268, 133 Ill. 2d 173, 139 Ill. Dec. 756 1989.IL.1667

Appeal from the Circuit Court of Cook County, the Hon. Joseph Urso, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

On August 21, 1984, the dismembered body of Danny Bridges was found in eight garbage bags in a dumpster in Chicago. Following a jury trial in the circuit court of Cook County, the defendant, Larry Eyler, was convicted of murder, kidnapping, aggravated kidnapping, unlawful restraint, and concealment of a homicidal death (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), 10-1(a)(3), 10-2(a)(3), 10-3(a), 9-3.1(a)).

The State requested a death penalty hearing; defendant waived a jury for that hearing. The trial court, finding no mitigating factors sufficient to preclude imposition of the death penalty, imposed the sentence of death. The court also sentenced defendant to 15 years' imprisonment and 5 years' imprisonment, respectively, on the aggravated kidnapping and concealment of a homicidal death convictions. (The unlawful restraint and kidnapping charges merged with the aggravated kidnapping charge.) This cause is before us on direct appeal. (Ill. Const. 1970, art. VI, 4(b); 107 Ill. 2d R. 603.) Defendant raises numerous challenges to his convictions and death sentence. We affirm. I. FACTS

Since defendant challenges the sufficiency of the evidence, we present the evidence adduced at trial in some detail.

At the time of the murder, defendant, age 32, lived at 1628 West Sherwin Avenue in Chicago. He and John Dobrovolskis had been lovers for the three years preceding the murder, although both also dated other men. Defendant engaged in bondage during sexual activities and was the dominant person during such acts. Dobrovolskis occasionally consented to bondage with defendant, because that was what defendant wanted. Defendant lived rentfree in Terre Haute, Indiana, with an older male named David Little for a number of years. In 1981 defendant moved to Chicago; in March 1984 he moved into the apartment building at 1628 West Sherwin, a 42-unit building. Defendant was unemployed; David Little cosigned the lease and paid the rent. Defendant occasionally worked as a house painter.

Robert David Little, age 48 at the time of trial, lived in Terre Haute, Indiana, at all relevant times. After defendant moved to Chicago, Little visited him frequently. He estimated that he visited defendant at the apartment on Sherwin five or six times between March and August 1984; he usually stayed from Friday evening to Sunday evening. Normally, no one else would be present on these weekends.

John Dobrovolskis was defendant's lover. He was married with one child. Dobrovolskis' mother-in-law, Rosemary Kyle, lived with Dobrovolskis' family. Dobrovolskis' wife was aware of her husband's relationship with defendant; she was "tolerant, at best" of this arrangement. Dobrovolskis and defendant had a "very close" relationship, but one which was characterized by frequent arguments. Each became jealous if the other dated other men. David Little's visits to defendant created a problem between defendant and Dobrovolskis. Little and Dobrovolskis were acquainted but did not get along. Dobrovolskis had been told by defendant that when Little was in town, he (Dobrovolskis) could not go to defendant's apartment. He was also instructed not to call, but he did anyway. Dobrovolskis testified that he believed that Little was a homosexual. At the time of trial, Dobrovolskis was 25 years old.

Danny Bridges, the victim, was a 15-year-old prostitute whose customers were men. He worked the streets at Clark Street and Montrose Avenue in Chicago. Joyce Bunch, a friend of the Bridges family, testified that Bridges often stayed at her house and would baby-sit for her. She knew he worked as a prostitute.

The State presented several witnesses, including Dobrovolskis and Little, who testified to defendant's actions and whereabouts from Friday, August 17, 1984, through Tuesday, August 21, 1984. Defendant and the State agree that the murder occurred during the early morning hours of Monday, August 20, 1984.

Defendant called Dobrovolskis on Friday, August 17, to tell him that Little was coming for the weekend. This meant that defendant and Dobrovolskis had to cancel plans they had to get together. Dobrovolskis told defendant he would then go out with a man named Ray; defendant did not like this and urged Dobrovolskis to stay home.

Little arrived at defendant's apartment between 4 and 4:30 p.m. on Friday. He and defendant spent the evening together. Little slept in the bedroom and defendant slept on the couch.

Dobrovolskis and defendant had numerous telephone conversations throughout the weekend. Defendant told Dobrovolskis that they could get together on Sunday after Little departed. Defendant and Little spent Saturday afternoon and Saturday evening together watching television until 2 a.m. (Sunday, August 19).

On Sunday morning, August 19, the victim was at Joyce Bunch's home. Because his own clothes were dirty, Bunch offered the victim a pair of jeans (size 29/32) and four T-shirts. One shirt was a Duke University T-shirt with cutoff sleeves. When the victim left Bunch's home that day, he asked if he could return to spend the night.

On Sunday evening, defendant and Little went out to dinner. That evening, Dobrovolskis endeavored to call defendant several times but received no answer. Finally, defendant called at 8:45 p.m. and told Dobrovolskis that Little was still there, and defendant did not know how much longer Little planned to stay. According to Dobrovolskis, this was unusual; usually by that time on Sunday, Little had left, and then Dobrovolskis and defendant could be together. Dobrovolskis then told defendant he would go out with Ray again, which he did. This caused defendant to become angry.

Little testified that he left defendant's apartment shortly after 10 p.m. Sunday evening and drove back to Indiana, arriving about 2:30 a.m. Monday, August 20. He went to bed, and got up between 10:00 and 11:00 Monday morning. That day, at about noon, he went to the county courthouse to pay his real estate taxes. Introduced into evidence was the receipt given to Little; the receipt shows that the taxes were paid on August 20, 1984. On cross-examination, the defense brought out that the real estate taxes were not due for another three months.

Sunday evening, Bridges was at his family's home on the north side of Chicago with his sister Sharon Faught. He left the house between 10:30 and 11 p.m. That was the last time Faught saw Bridges alive.

Defendant called Dobrovolskis at 11 p.m. Sunday night and tried to talk Dobrovolskis into staying home that night. Dobrovolskis told defendant he was willing to get together, but defendant said he was still busy with Little. The two argued; Dobrovolskis hung up on defendant twice. Shortly thereafter, Dobrovolskis went out to meet Ray, who was to pick up Dobrovolskis at the corner of Montrose Avenue and Western Avenue between 11:45 p.m. and midnight. As he stood at that corner, Dobrovolskis saw defendant drive south on Western Avenue in his pick-up truck. Dobrovolskis called out defendant's name, but defendant did not stop. Defendant appeared to be alone in the truck.

At some point between 11:45 p.m. and 1 a.m., defendant purchased gasoline at Clark and Ontario Streets on the near north side of Chicago; this was approximately 40 blocks south of the area where the victim normally worked as a prostitute.

Dobrovolskis was out with Ray and a friend until 2:30 or 2:45 a.m. (Monday morning). From the time Dobrovolskis returned home until about 3:30 a.m., Dobrovolskis and defendant exchanged several telephone calls; they argued. When asked by Dobrovolskis why defendant did not acknowledge Dobrovolskis calling defendant's name on the street, defendant said, "I told you, you and David [Little] are driving me crazy." (Defendant had made the same remark to Dobrovolskis during an earlier telephone conversation.) As he had done all weekend, Dobrovolskis told defendant he wanted to get together with him; defendant said they could not because Little was still there. Dobrovolskis found this to be unusual. Defendant said he had been sleeping, but Dobrovolskis thought he sounded "quiet" and "extremely coherent"; he did not sound as though he had just been awakened.

Defendant refused to go over to Dobrovolskis' apartment. Finally, Dobrovolskis told defendant that if defendant would not come over to his place to spend time with him, Dobrovolskis would go over to defendant's apartment. According to Dobrovolskis, defendant then "yelled, 'No, don't do that.'" Defendant agreed to go to Dobrovolskis' house; he said he would arrive at 4 a.m., and could stay for an hour.

It would normally take defendant 20 minutes to get to Dobrovolskis', but he did not arrive for an hour and a half. The two then had sex on the kitchen floor. Dobrovolskis testified to a number of unusual things about defendant's behavior: defendant appeared to be exhausted; he was not wearing any underwear or socks; his hair was wet; and for the first time in their three-year relationship, defendant was nonresponsive during sex. After they had sex, defendant wanted to stay at Dobrovolskis' for an hour, but Dobrovolskis told him he could not because his mother-in-law would be getting up soon. Defendant left Dobrovolskis at about 5:30 a.m. At 6:15 a.m., defendant called Dobrovolskis and they had a short conversation.

Al Burdicki, the janitor at 1628 West Sherwin, defendant's apartment building, also testified for the State. On the morning of Monday, August 20, 1984, Burdicki observed defendant make 8 to 12 trips down the back stairwell to his (defendant's) storage locker. Burdicki eventually asked defendant what he was doing. Defendant replied that he was getting tools for a job.

Later, at about 3 p.m. on Monday, Burdicki observed defendant, on three separate trips, carry a total of four silver garbage bags and a large "bundle." At this time, Burdicki was with his dog, a German Shepherd. He testified that defendant was carrying the bags like "they were heavy burden [ sic ]." He explained that the plastic was "stretched real tight" and that defendant's shoulders were stooped over. Each time defendant passed Burdicki and the dog with the bags, the dog growled, barked, and snapped at the bags; the dog "started to go crazy on me," according to Burdicki. On each of the first two trips, defendant was carrying two garbage bags. Burdicki saw him go out of the building with the bags, and return two minutes later without the bags. The dog had no reaction to defendant when he was not carrying the bags. Burdicki reminded defendant not to use other buildings' dumpsters.

On the third trip, defendant carried a heavy package or bundle clenched to his chest, the way someone would carry a heavy bag of groceries. The dog again growled and barked. Shortly thereafter, Burdicki went outside. He observed defendant throw the bundle he had been carrying into the dumpster behind 1640 West Sherwin, the building next to defendant's. It looked as if defendant had just picked up the bundle from the ground. Defendant had to make a 360-degree turn in order to throw the bundle into the dumpster. Defendant then saw Burdicki, and defendant "got this startled look on his face."

Burdicki also testified that during the months of June, July and August 1984 (the three months preceding the murder), he saw young males in their early teens go with defendant to his apartment 10 to 15 times.

Nicholas Fritz, the janitor for the building at 1648-50 West Sherwin, observed a man at about 3:30 p.m. on Monday, August 20, 1984, come out of the 1628 West Sherwin building carrying two heavy bags. He watched as the man walked past the garbage cans for his own building, and threw the bags into the dumpster behind 1640 West Sherwin. Fritz later identified this man as defendant.

At 5 p.m. that day, Monday, August 20, defendant phoned Dobrovolskis, telling him that Little had left and they could get together. That evening, defendant went to Dobrovolskis' home to wait for Dobrovolskis to return from an evening out. Dobrovolskis returned home at 12:30 a.m. on Tuesday, August 21. Defendant was watching television. He was acting "very strangely"; he did not say hello and he was very quiet. The two returned to defendant's apartment. Dobrovolskis noticed that the living room had been straightened up, and that the bathroom was "sparkling clean." This was unusual; Dobrovolskis usually had to straighten up after defendant.

At one point in the evening, Dobrovolskis used a plunger to unclog the kitchen sink. Dobrovolskis described what came up from the sink: "Blood, like white pieces of flesh, and black, gravel type material or charcoal or something like that came up with it, and something pink and swirling that I thought was blood from the chicken fat or something looked like it." Dobrovolskis and defendant went to sleep at 3 a.m. on Tuesday, August 21.

The victim's body was discovered shortly after 6 a.m. on Tuesday. Joe Balla, the janitor at 1640 West Sherwin, arrived at that building at 6 a.m. He saw heavy gray bags in the dumpster. He was familiar with his tenants' trash, and knew that these bags were not from his tenants. He was angry that others were using his dumpsters; he ripped open one of the bags and saw the upper part of a leg. He called the police, who arrived shortly.

Apparently by the time the police arrived, all three janitors were standing around the dumpster. Fritz told the other two and the police about the man he had seen carrying bags the day before. Burdicki recognized the description as Larry Eyler, the defendant. A short while later, Fritz saw defendant being taken to a police car in handcuffs and he identified defendant as the man he had seen the day before. Later that day, Fritz identified defendant in a lineup.

When Burdicki arrived, he looked into the dumpster; it was the same dumpster he saw defendant throw the package into the day before. He saw five silver bags, the same kind defendant had been carrying. One was ripped and he saw what appeared to be the upper thigh of a human body. He knew "immediately" that these were the bags the defendant had put in the dumpster, and he related this to the police.

Shortly thereafter, defendant and Dobrovolskis were arrested in defendant's apartment. The apartment was locked and placed under guard until officers returned at 1:30 p.m. the same day with a search warrant.

The State presented several expert witnesses and numerous items of physical evidence recovered from defendant's apartment.

Dr. Robert Stein, the chief medical examiner of Cook County, arrived at the scene early Tuesday morning. Under his direction, the garbage bags were removed from the dumpster, opened, and the body parts were reassembled on the ground and photographed. There were eight bags in all, each containing a body part. There was one bag each for the two thighs, two lower legs, two arms, and head. The torso was in another garbage bag; it was wrapped in an outer layer of clear plastic, and tied with a clothesline. The bags were taken to the crime lab and dried; they were then exposed to "superglue" fumes to enhance any latent fingerprints. Two of defendant's fingerprints were found on one of the bags; one print was inside the bag, and one was outside. (Dr. Stein's testimony concerning the condition of the body is discussed in connection with defendant's challenge to the aggravated kidnapping conviction.)

William O'Connor, a Chicago police officer, processed the crime scene. He testified that when he entered defendant's apartment on Tuesday afternoon, it was clean, and the bedroom smelled of fresh paint. He said that if he had not been looking for evidence of murder, he probably would not have noticed anything amiss. Two of the bedroom walls had been recently painted, up to six or eight inches from the ceiling. Spots of human blood were found on one of these walls.

Extensive testimony was presented concerning what was found in the apartment. At trial, and in this court, defendant conceded that the evidence tends to show that defendant concealed the murder, although at oral argument defendant's counsel stated he was not conceding that his client is guilty of that offense. Defendant does not seriously contend, however, that Danny Bridges was not murdered in defendant's apartment. Therefore, we will only briefly summarize the testimony concerning the evidence recovered from the apartment.

Blood was found all over the apartment. Marian Caporusso, the supervisor of serology for the Chicago police department crime lab, testified without objection as an expert. She used four successive blood tests on various objects: (1) a test to determine whether a stain contains blood; (2) a test to determine if the bloodstain is human blood; (3) typing of human blood using the A-B-O antigen system; and (4) electrophoretic analysis to identify the enzyme pattern associated with a particular person's blood. (The fourth test is explained more fully below in connection with defendant's challenge to testimony concerning electrophoretic testing.)

Blood with an enzyme pattern matching the victim's was found on numerous objects, including: the bed mattress; the seat of a chair and a sofa in the bedroom; a black belt found in the bedroom; a plastic bag and white sock found in a closet; and various surfaces in the bathroom. A pair of blue jeans (size 32/33) was found, soaked through with what Caporusso called "rivulets of blood" down the front and back; the blood matched the victim's enzyme pattern. Other evidence tended to show that these jeans belonged to defendant. (The State argued that the rivulets of blood resulted from the defendant's carrying the victim's body over his shoulder.)

A bloodstained Duke University T-shirt was recovered from a hamper. Joyce Bunch later identified it as the shirt she had given to the victim. Also recovered from the apartment were a hacksaw frame and a Stanley scratch awl, both of which had traces of human blood. Hacksaw blades were also recovered; apparently, no blood was found on the blades.

After the State rested, the defense presented its case. Two witnesses testified. The first was an investigator with the Cook County public defender's office. He testified that he and one of the defense attorneys visited defendant's apartment on August 24, 1984, for about half an hour. Another witness testified that she was in defendant's presence on Sunday evening, August 19, 1984, between 7:15 and 8:40 p.m. Defendant did not testify.

The State did not present any rebuttal witnesses. II. GUILT/INNOCENCE ISSUES

A. Sufficiency of the Evidence

Defendant's first contention is that the evidence is insufficient to prove him guilty of murder and aggravated kidnapping beyond a reasonable doubt. He contends that it was David Little who brought the victim to the apartment and murdered him.

In his opening brief, defendant contended that the prosecution did not exclude every reasonable hypothesis of innocence -- namely, that Little committed the murder. However, we have disapproved of the use of the "reasonable hypothesis of innocence" language in jury instructions, because it is both "obscure and misleading." People v. Bryant (1986), 113 Ill. 2d 497, 512.

The principles governing our review of defendant's challenge to the sufficiency of the evidence are well established and were recently set forth in People v. Phillips (1989), 127 Ill. 2d 499, 509-10. It is, of course, the jury's function to determine the accused's guilt or innocence and this court will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of defendant's guilt. It is not this court's function to retry the defendant. The United States Supreme Court has stated that "the relevant question is whether, 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; see also People v. Collins (1985), 106 Ill. 2d 237, 261.) Moreover, it is for the jury to weigh the credibility of witnesses and to resolve conflicts or inconsistencies in their testimony. (Phillips, 127 Ill. 2d at 514.) Applying these principles to the case at bar, we readily conclude that defendant's convictions are not subject to reversal.

Defendant points to a number of supposed weaknesses in the State's case against him. We will address each of these matters, but the short answer is that these matters were explored on cross-examination and argued to the jury, and the jury found against the defendant.

As we have said, defendant's main contention is that Little is the murderer. He argues that Little's alibi -- the payment of his taxes on Monday morning -- is simply too convenient, suggesting that the alibi was planned. Moreover, he says, Little could have committed the murder and still have been back in Indiana by about noon, when he paid his taxes.

Little was cross-examined at some length on why he paid his taxes that morning in person. The jury evidently found Little to be credible, and we will not disturb that determination.

Similarly, defendant points to certain minor details in Little's testimony which conflicted with the testimony of other witnesses. For example, Burdicki said he saw Little and defendant having an argument over the weekend, but Little denied having an argument. This and other testimony cited by defendant did not relate to a material issue in the trial; in any event, it is the jury's function, not this court's, to resolve contradictions.

Another conflict in the testimony involved when Little left Chicago. Little testified that he left at approximately 10:15 p.m. Sunday. Dobrovolskis testified that defendant told him that Little was still in the apartment as late as Monday morning at about 6 a.m., after defendant returned from Dobrovolskis' house. (Dobrovolskis testified that at that time, defendant told him on the phone that defendant was able to get into the apartment without waking Little.) This is the only evidence defendant can point to in support of his theory that Little was in Chicago after 10 p.m. Sunday. Given all of the other evidence, the jury could have concluded that Eyler told Dobrovolskis that Little was still around in order to prevent Dobrovolskis from coming over to defendant's apartment while defendant was in the process of dismembering the victim.

Defendant also points out that there were no fingerprints of the victim in defendant's truck. There was no evidence that defendant cleaned the truck, since defendant's prints and Dobrovolskis' prints were found there. Given the rest of the evidence presented, the absence of the victim's prints does not create a reasonable doubt. Similarly, although none of Little's prints were found in the apartment, there was evidence that defendant's apartment had been thoroughly cleaned, even painted, sometime Sunday ...


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