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03/24/94 PEOPLE STATE ILLINOIS v. DONALD J. WHALEN

March 24, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DONALD J. WHALEN, APPELLANT.



Miller

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

The defendant, Donald Whalen, was convicted of first degree murder in a jury trial in McLean County and was sentenced to a term of 60 years' imprisonment for the offense. The appellate court affirmed the defendant's conviction and sentence. (238 Ill. App. 3d 994.) We allowed the defendant's petition for leave to appeal (137 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate court.

Much of the evidence in this case is undisputed. Around 4:30 a.m. on April 6, 1991, an employee found the body of the murder victim, William Whalen, lying on the floor of the tavern that Whalen owned and operated in Bloomington. The victim had been beaten and stabbed, and a broken bar stool, two broken pool cues, and a number of bent knives were found near the body. In addition, bloody shoeprints containing the letters "CONS" were found on the tavern floor.

Witnesses testified that the tavern had closed around 2 or 2:15 a.m. on April 6, a Saturday, and that the victim was alone on the premises after the last customers had left. Investigators found that the tavern's two cash registers together contained about $240, consisting almost entirely of five-dollar and one-dollar bills. According to the evidence, the victim ordinarily carried$200 or $300 in cash, and about $630 was found in his pocket following his death. No money was found in the tavern safe, which was open, though there was testimony that $450 in bills and change was regularly kept there overnight for the opening of business the next day; there was no evidence of how much money was actually in the safe prior to the murder. Other testimony indicated that the tavern would do about $800 or $900 in business on a typical Friday.

An autopsy revealed that the victim had sustained 39 blunt trauma wounds and 33 stab and incised wounds, including stab wounds to the heart and lungs. A number of these injuries by themselves would have been fatal. According to the pathologist who performed the autopsy, the causes of death were craniocerebral injuries due to blunt trauma, and multiple stab and incised wounds. The blows to the head had nearly severed one of the victim's ears.

The defendant, who was the victim's son, was arrested on May 31, 1991, and charged with the murder. In addition to the evidence summarized above, at trial the prosecution presented testimony establishing that a bloody palmprint appearing on a piece of a broken pool cue was the defendant's. The palmprint was described as a put-down impression, which signified that blood was already on the defendant's hand at the time the impression was made. Additional testing revealed that the blood on the pool cue was inconsistent with the defendant's blood type but was consistent with the victim's.

Other testimony showed that the defendant regularly wore a particular style of Converse brand shoes having distinctive soles with the letters "CONS" on them, matching the shoeprints found on the tavern floor. Moreover, an examination of the shoes taken from the defendant late in May 1991, at the time of his arrest, nearly two months after the murder, revealed that they were the same length and width as the prints; the only difference between the two was that the defendant's shoes were excessively worn and pieces of one sole were missing. Thus, although the expert who conducted the comparisons stated that the defendant's shoes, as they appeared at the time of the examination, could not have made the prints found at the crime scene, the witness, not knowing the condition of the defendant's shoes at the time of the murder, was unable to conclude that those shoes had not made the prints.

In a statement made by the defendant to authorities in Bloomington on May 29, 1991, two days before his arrest, the defendant said that he had had a fight with his father about a month prior to the murder. The defendant also told investigators that he had previously borrowed $350 from the victim and had been trying to avoid him. In addition, the defendant said that his father had ordered him out of the family residence at some point prior to the murder, and that he returned to the home after his father's death. The defendant also stated that he had recently disposed of a pair of Converse brand shoes of the same style later taken from him by investigators.

The defendant gave a second statement following his arrest on May 31. At the time of the arrest the defendant was in a hospital in Lincoln, where he had voluntarily entered a drug rehabilitation program. On his return to Bloomington, the defendant told officers that he regularly used marijuana and cocaine, and he estimated that his drug habit cost him $100 a day.

Over the defendant's objection, the trial Judge permitted the State to present evidence of a large cocaine purchase made by the defendant shortly after his father's death. The prosecution offered this testimony to support its theory that the defendant committed the offense because he needed money to support a drug habit. Testifying under a grant of immunity, prosecution witness William Craig Elliott stated that on Wednesday, April 10, 1991, the day after the decedent's funeral, the defendant arrived early in the morning at the house where Elliott was staying, woke Elliott, and asked Elliott to go to Chicago with him to buy cocaine. The defendant told Elliott that he was carrying $5,000 in cash for that purpose and displayed a large roll of money. Elliott and the defendant drove that day to Chicago, where Elliott made contact with his supplier. The defendant provided $3,000 for the purchase, and Elliott $400. According to Elliott, the defendant paid mainly with fifty-dollar and one-hundred-dollar bills. The two returned to Bloomington and divided the drug in half. Elliott next saw the defendant a day or two later at a bar in Bloomington. On that occasion the defendant requested more cocaine, which Elliott gave to him.

To further buttress its theory that the defendant committed the murder because he needed money, the State introduced evidence showing that the defendant's parents' joint checking account saw a large increase in activity during the period between the murder, on April 6, and the defendant's arrest, on May 31. According to this testimony, the number and amounts of deposits and withdrawals were much greater in April and May 1991 than in February, March, or June of that year. The defendant did not have a bank account of his own. Colleen Whalen, the defendant's mother, testified that she provided the defendant with money during April and May, after her husband's death and before her son's arrest. Additional testimony showed that the defendant sold his car for $700 on April 29 and the family's riding lawn mower for $500 on May 28.

The defendant raised an alibi defense. In his own testimony, the defendant stated that he went to his father's tavern around 11 a.m. on Friday, April 5, 1991. There he ate lunch, played pool, and borrowed $50 from his mother; his father was not at the tavern at that time and was not scheduled to work until that evening. The defendant stated that he left the tavern after lunch, returned around 2 or 3 o'clock in the afternoon to the house where he had been living since his father had ejected him from the family residence, and stayed at the house the rest of the day. He testified that one of his housemates, Todd Aeschleman, woke him around 1:15 the following morning, and the two then talked for a while. The defendant stated that he did not leave the premises until later that morning, when he received a telephone call summoning him to his father's tavern. The defendant also testified that he did not have a drug problem until after his father's death, and he denied purchasing cocaine with William Elliott. The defendant further testified that his father had given him a car that Christmas and that they had just gone on a hunting trip together. The defendant had been convicted of aggravated battery of a police officer in 1987 and had successfully completed a 30-month term of probation for that offense.

The two persons with whom the defendant shared a house provided testimony in support of his alibi. Todd Aeschleman stated that he returned to the house from a bar around 1 or 1:30 a.m. on April 6, 1991. The defendant was sleeping on a couch at the time. Aeschleman testified that he woke the defendant, and that the two of them talked for about 45 minutes. The defendant went to bed around 2 o'clock, and Aeschleman stayed up until 3. Aeschleman testified that he did not hear the defendant leave the house at any time during the night.

The defendant's second housemate, Pamela Hall, testified that she left the house around 8 or 8:30 in the evening on April 5. The defendant was there at the time. Hall testified that she returned home around 3 or 3:30 the following morning. The other bedroom doors were then closed. Hall said that she next saw the defendant at 6:30 or 7 that morning, when she woke him to take a telephone call.

Additional defense witnesses stated that they had seen the defendant and his father together in the weeks preceding the murder and that the two appeared to be getting along well. The defendant's brother, Steve Whalen, and sister-in-law, Barb Whalen, testified that the defendant and his father would have disagreements but were always able to resolve them. Other witnesses testified that they saw the defendant soon after the occurrence and did not notice anything unusual about his behavior or appearance. The defendant's mother, Colleen Whalen, testified that she had recognized the defendant's drug problem but did not know whether her husband had been aware of it.

The trial Judge refused to permit the defense to present testimony that, the defendant believed, was probative of another person's possible commission of the charged offense. In addition, prior to trial, the Judge had granted a prosecution motion to preclude the testimony of a tardily disclosed defense expert, and the defendant had declined to request a continuance.

The jury found the defendant guilty of murder. Following a sentencing hearing, the Judge sentenced the defendant to a term of 60 years' imprisonment for the conviction. The appellate court, with one Justice Concurring in part and Dissenting in part, affirmed the defendant's conviction and sentence. (238 Ill. App. 3d 994.) The appellate court concluded that the defendant had waived any objection to the trial Judge's decision to preclude the defense expert's testimony. The court rejected the defendant's two additional contentions that the Judge had committed reversible error in allowing the State to present evidence of the defendant's purchase and use of cocaine and in prohibiting the defense from presenting evidence that another person might have committed the murder. The third member of the appellate panel would have granted the defendant a new trial, agreeing with the defendant that the trial Judge had erred in barring the testimony of the defendant's expert and in excluding evidence of the possible involvement of another person in the offense. (238 Ill. App. 3d at 1005-08 (Knecht, J., Concurring in part and Dissenting in part).) We allowed the defendant's petition for leave to appeal (134 Ill. 2d R. 315(a)). Before this court, the defendant renews these same three challenges to the trial Judge's evidentiary rulings.

The defendant first contends that the trial Judge committed reversible error in barring the defense from presenting the testimony of its expert witness, Ilya Zeldes. The defendant argues that preclusion of the expert's testimony was too harsh a sanction for the tardy disclosure of the expert's identity. The defendant notes that the trial Judge, in barring the testimony, made no finding that ...


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