Freeman, Nickels, Heiple, Bilandic, McMORROW
The opinion of the court was delivered by: Freeman
JUSTICE FREEMAN delivered the judgment of the court:
In 1985, defendant, Rolando Cruz, and codefendant Alejandro Hernandez were tried together, convicted of the kidnapping, rape and murder of Jeanine Nicarico and sentenced to death. The jury was unable to reach a verdict on identical charges against another codefendant, Steven Buckley. Defendant Cruz's convictions were reversed, and his case was remanded for a new trial ( People v. Cruz (1988), 121 Ill. 2d 321, 117 Ill. Dec. 907, 521 N.E.2d 18). Hernandez's convictions were also reversed, and his case was remanded for a new trial ( People v. Hernandez (1988), 121 Ill. 2d 293, 117 Ill. Dec. 914, 521 N.E.2d 25). The jury was unable to reach a verdict on identical charges against Buckley.
Following a second jury trial in the circuit court of Du Page County, defendant was again convicted of murder, aggravated kidnapping, deviate sexual assault, aggravated indecent liberties, and residential burglary (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2), 10-2(a)(2), (a)(3), 11-3(a), 11-4(a), 19-3(a)), and again sentenced to death (Ill. Rev. Stat. 1981, ch. 38, par. 9-1). Defendant's death sentence was stayed (134 Ill. 2d R. 609(a)), pending direct review by this court (Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d R. 603). On initial review, a majority of this court affirmed defendant's convictions and death sentence; three members Dissented. Defendant petitioned for rehearing, and we allowed the filing of supporting amicus curiae briefs submitted by religious leaders, various local and national bar associations, deans from Illinois law schools, several individual legal scholars, and a grouping of former State and Federal prosecutors. We subsequently granted defendant's petition for rehearing (134 Ill. 2d R. 367) and reconsidered the case. Preliminarily, we grant the State's motion to supplement the record on appeal with the testimony of George Mueller, Brian Dugan's former counsel, given at the trial of codefendant Alejandro Hernandez. We also grant the defendant's motion to file instanter his response to the State's motion to supplement the record. Based on findings of significant trial error, we now reverse and remand for retrial.
The sad facts of this case are well known and adequately recounted in Cruz, 121 Ill. 2d 321, 117 Ill. Dec. 907, 521 N.E.2d 18, and Hernandez, 121 Ill. 2d 293, 117 Ill. Dec. 914, 521 N.E.2d 25. In sum, on the afternoon of February 25, 1983, 10-year-old Jeanine Nicarico was kidnaped from her family's Naperville home, raped and bludgeoned to death. Her body was found several days later in underbrush on the Illinois Prairie Path, near Eola Road, south of Illinois Route 5 in Naperville. The coroner determined that Jeanine had died within several hours after her abduction as the result of several severe blows to the head. She was also blindfolded with a towel which was secured by adhesive cloth tape wound several times around her head. Her body additionally evidenced a broken nose, minor post-mortem scratch marks on the legs, and vaginal and anal sexual assault.
On March 14, 1983, Du Page County sheriff's police questioned Alejandro Hernandez based on an anonymous tip that he might have information about Jeanine's murder. Near the end of April 1983, after speaking with other acquaintances of Hernandez and defendant, police began a series of Discussions with defendant about the murder. Defendant was among several persons who were then attempting to provide police with information about the murder following the public offering of a $10,000 reward. During this time, defendant was in periodic contact with authorities investigating the murder. On March 9, 1984, on the basis of several statements made to police and various witnesses, defendant was arrested and charged with Jeanine Nicarico's murder.
The State's evidence was largely testimonial, consisting of statements made by defendant to law enforcement officials, friends, or fellow inmates. Dan Fowler, a convicted felon, testified that, in the spring of 1983, he and defendant were drinking beer one evening, celebrating defendant's birthday, when defendant related that he knew the four or five persons who were involved in the Nicarico murder. Defendant said that he had been "involved with it, * * * but didn't kill the girl." Defendant told Fowler that he knew where the bat, the murder weapon, was, and then he began crying. Fowler reportedly wanted to go retrieve the weapon and turn it in, but defendant said "no." Following the conversation, defendant and Fowler drove to the home of someone defendant wished to see. Fowler identified the son of the Nicaricos' former housekeeper from a photo as the person they had visited.
The defense impeached Fowler with evidence showing that he had testified inconsistently before the grand jury. This evidence revealed that, before the grand jury, Fowler initially testified that defendant told him defendant knew who was involved in the case, and that defendantplanned to testify against them. Following a noon recess, Fowler testified that defendant told him that defendant, himself, had been at the murder scene. Fowler was further impeached by Thomas Laz, defendant's former counsel, who testified that Fowler had once explained to him that, during the noon recess, a prosecutor threatened to charge Fowler with perjury. Fowler then told the grand jury, after the recess, what he believed the prosecutor wanted him to say. According to Laz, Fowler related that he gave the truthful testimony before the noon recess.
Stephen Ford, a fellow inmate with defendant in the Du Page County jail, testified that defendant told him that he had "kind of killed" a girl in Aurora. According to Ford, defendant related that he had been living in the woods in Aurora, but "something" had happened and he had to get out of the area. Defendant also reportedly said that he had left something "stashed" there. Ford was impeached, however, with his testimony from defendant's first trial, which was that he was unsure about defendant's statement to him. According to Ford, he gave this earlier testimony because defendant had threatened to kill him. Ford denied receiving any preferential sentencing in return for his testimony, yet he conceded that he had received two five-year concurrent sentences for two burglary charges and numerous other burglary charges were "possibly" dropped less than two weeks after he reported his conversation with defendant to authorities.
Du Page County Sheriff's Detectives Vosburgh and Kurzawa testified that on May 2, 1983, they took a tape-recorded statement from defendant. Defendant told them that Ray Ortega, a friend, had told him that Alex Hernandez had taken a little girl from a house in Naperville during a home invasion and that the girl had been hurt, so Hernandez had decided to "finish it." According to defendant, someone named "White Boy" had arranged the home invasion. Vosburgh and Kurzawa testified that they spoke with Ortega the next day. Their testimonies reveal that no substantial evidence was gained.
Vosburgh testified that on May 9, 1983, he picked up defendant at his home and drove him to the sheriff's office. Defendant related that he "knew too much" and was being "shot at" by Hernandez and his friends. Defendant told the detectives that he had had a dream that a young girl had been dragged from the house in a blanket, anally raped, and either struck over the head or on the back of the head with sufficient force to leave an impression in the ground, and dumped near a field. According to the detectives, defendant appeared upset and distraught during this conversation, repeatedly saying, "Tell me it isn't so." At the time, photos of the victim and the crime scene were visible on a nearby table. Defendant could not look at the crime scene photo. The two officers did not tape-record defendant's "dream" statement, nor did they make a written report of the statement. They communicated with prosecutor Thomas Knight that same evening, who told them that a recorded statement would not be necessary because defendant would soon testify before the grand jury. Because defendant said he feared for his life, the detectives allowed him to spend the night at the sheriff's station for his protection. Parenthetically, we note that pretrial discovery did not reveal the existence of defendant's "dream" statement until shortly before trial and that Deputy John Sam, who worked alongside Kurzawa and Vosburgh during the course of the investigation, also testified that he never heard mention of defendant's "dream" statement during that time.
Kurzawa additionally testified that on the morning of May 10, after sleeping at the police station, defendantgave another statement which police tape-recorded. Defendant related that a short time before the alleged shooting, he had been approached by Hernandez, who had indicated to defendant, by pointing to defendant's head, where the girl had been struck. Defendant related that Hernandez had said defendant "knew too much" and asked defendant "what good is a dead Chinaman," Chinaman being defendant's street name. Defendant also related an obviously untrue, detailed story about Hernandez, Ortega, and Emilio Donatlan killing the girl with a baseball bat at Donatlan's house. This story, however, contained some facts which were concededly consistent with the ongoing murder investigation, including that the victim had a broken nose and was perhaps struck on the head with a baseball bat. According to the later testimony of Assistant State's Attorney Thomas Knight, some of the facts consistent with the murder investigation were thought by authorities not to have been released to the public, notably that the victim's nose had been broken. According to Kurzawa, police obtained a warrant and subsequently searched Donatlan's home, but did not find any evidence corroborating defendant's statement. At no point in this May 10 statement did defendant mention or repeat his previous "dream statement."
Erma Rodriguez, defendant's cousin, was also called by the State and testified that she saw defendant on Easter Sunday, 1983, and one week earlier when he visited her home. Rodriguez testified that, on Easter, defendant was in his car with a man whose face Rodriguez had not seen. The State attempted to impeach Rodriguez by asking her whether she had previously told Du Page County Sheriff's Detective Warren Wilkosz and Ramon Mares, Rodriguez's cousin, that this man was Brian Dugan. Rodriguez adamantly denied making the statement. Rodriguez also denied telling Wilkosz thatdefendant's first visit had occurred several weeks before Easter. The State called Mares and Wilkosz in further impeachment of Rodriguez.
Mares testified that Rodriguez had previously told him that Dugan was in the car with defendant on Easter Sunday. Mares also testified that he, himself, had had a conversation with defendant in March 1983, in which defendant claimed to know who had killed the "little girl." The defense impeached Mares with prior inconsistent statements to Wilkosz and the grand jury, in which he claimed that, in this conversation, defendant admitted to also having been present when the girl was killed. Mares admitted that he had lied before the grand jury because assistant State's Attorneys had "scared" him into testifying by threatening to bring perjury and contempt charges against him. He had also hoped to receive all or part of the $10,000 reward.
Detective Wilkosz testified that he interviewed Rodriguez one week before trial and she identified Dugan as the person with defendant on Easter Sunday. Wilkosz also testified that Rodriguez told him that defendant had come to her home "several weeks" before Easter at 2 a.m., was upset and crying, saying he was in trouble, and requested that she mail a letter to his mother in Texas.
Lieutenant Robert L. Winkler, a watch commander at the Du Page County jail, testified that on March 13, 1984, shortly after being arrested, defendant told him that Hernandez and Stephen Buckley (formerly a codefendant) had asked him to participate in a burglary. Defendant related that he declined their offer. Defendant also related that the pair asked to borrow his car for the burglary, but he did not want them to use it, so he found an older-model, green Lincoln Continental, "hotwired" it, and gave it to them. A few days later, Hernandez telephoned defendant to ask whether he wanted to havesex with a little girl. Reportedly, defendant declined, saying "he was not into that sort of thing." Winkler acknowledged that he had made no record of his conversation with defendant. Under cross-examination, Winkler also conceded that, at defendant's first trial, he had not mentioned a green Lincoln auto and had testified that defendant said that he showed Hernandez and Buckley how to "hotwire" a car.
Thomas L. Knight, a former Du Page County assistant State's Attorney, testified that he told Detective Kurzawa and lieutenant Winkler not to document the statements defendant made to them on May 9, 1983, and March 13, 1984. According to Knight, he told Kurzawa he need not tape-record defendant's May 9 statement because defendant would soon be questioned when he appeared before the grand jury and a verbatim statement could be taken. Knight testified that he told Winkler he need not write up defendant's statement because Knight was in the process of summarizing all of defendant's statements for discovery and he would include it in his summary. Knight also recounted defendant's testimony before the grand jury, in which defendant told of his several interactions with Donatlan, Ortega, Hernandez, and Joe Sanchez in order to obtain information for police about the murder.
According to Knight, defendant testified before the grand jury that Ortega and Sanchez had discussed home invasions in Naperville. Defendant testified that Ortega once told him about someone named "White Boy" who was doing home invasions in Naperville. Sanchez once told defendant that Ortega was afraid to go back to Naperville with Hernandez after they had done the last burglary. Sanchez also expressed to defendant that he knew "too much." Defendant also testified that Ortega as well as Hernandez claimed to defendant that Hernandez had killed the girl because Hernandez believedhe was going to get charged with her murder anyway. Defendant also testified that he discussed with Hernandez doing home invasions in Naperville. According to defendant, Hernandez had indicated to defendant where on the head the girl was hit. Defendant also testified about a conversation he had with Donatlan wherein they discussed the Naperville girl. According to Knight, defendant testified to the same story he had given Kurzawa about the girl being killed at Donatlan's house, and added that Hernandez had disposed of the girl's body.
Knight additionally testified that defendant had first told the grand jury that he was working at Oasis Whirlpool on February 25, 1983. Defendant later testified that he had spent the day and evening of February 25, 1983, with friends "getting high."
On cross-examination, Knight agreed that defendant had "spun a story" about Ortega and Sanchez. Knight also admitted that he had not questioned defendant about defendant's "dream" statement before the grand jury.
William Jahnke, president of Oasis Industries, formerly Oasis Whirlpool, testified that although defendant had worked for him for a short time, he had not been employed by Oasis on February 25, 1983.
Steven Pecoraro, another fellow inmate with defendant in the Du Page County jail, testified that in November 1984, defendant told him that defendant, Hernandez and Buckley broke into a house in Naperville, found a little girl and then took her to an abandoned drug dealer's house in Aurora. Defendant related that Buckley and Hernandez took the girl upstairs and defendant heard her screaming because Hernandez was sexually assaulting her. Supposedly, the girl also fell down some wooden stairs, became unconscious, was dragged up by her feet, and defendant heard herscreaming again. Pecoraro testified that defendant related that the girl was killed because she could identify him. Pecoraro testified that defendant commented that he had walked around in the mud in the back of the house and did not understand why police had taken only Buckley's shoes for inspection. Pecoraro also testified that in February 1985, he heard defendant say that he was going to write a book about "how to kill little girls, or five ways to crush a skull." Defendant then started singing "Ooh, little Jeanine." According to Pecoraro, defendant's statements had upset him so much that he mailed a letter to the State's Attorney. Evidence of Pecoraro's convictions and psychiatric treatment was admitted, but evidence that his offenses involved the theft of human body parts, including genitalia, was excluded. Notably, the State did not contend during this trial that Buckley was involved in the Nicarico murder.
A significant difference between the State's case at defendant's first trial and this second trial was the testimony offered by Robert Turner, a convicted murderer and sex offender, housed with defendant in the condemned unit at Menard Correctional Facility, awaiting resentencing. Turner testified that he had spoken with defendant on several occasions in the prison yard, during the warm months of 1987, and defendant had on one occasion admitted that defendant, Hernandez and "someone named Dugan" killed Jeanine Nicarico. According to Turner defendant told him that the trio burglarized a home, found a girl inside, took her in the back seat of a car to a lightly wooded area, raped her, and then killed her outside the car by hitting her on the head with a crowbar. Some months later, Turner wrote a letter to the Attorney General stating that he had information about eight death row inmates' cases, including defendant's. Turner wrote, "These people have told me what happened in their cases, althoughmost of them will not get a new trial, but one may never know." Assistant State's Attorneys then contacted Turner. At the time, Turner's appeal was pending.
Turner admitted under cross-examination that he had decided to write the letter after reading a Chicago Lawyer article, asserting defendant's innocence, which had made him angry. Turner denied knowing anything about defendant's case before speaking with him. Turner also denied telling other death row inmates John Pecoraro (unrelated to Steve Pecoraro) and Richard Nitz that he knew of a way to "get time" (obtain a natural life sentence) by finding out some facts about a case and then fabricating additional information. Turner agreed that, on his resentencing, he would like the Judge to be aware that he had cooperated in defendant's case. Turner denied, however, being offered any promises of leniency in exchange for testimony. Turner testified that Assistant State's Attorney Robert Kilander had never said anything to him about providing favorable testimony at Turner's resentencing hearing.
The State also introduced certain physical evidence, including that: a small amount of blood was found on and around the Prairie Path; there was an impression found in the mud about two feet from the victim's head; several parallel markings resembling small hand imprints were found along the walls of the Nicarico home near the front door; a shoeprint was located on the front door of the Nicarico home; two distinctly different shoeprints were found outside the Nicarico home near a window (after defendant's trial, one of the prints was revealed to be a woman's size six print); a tire impression was found in the grass along the curb in front of the Nicarico home, inside of which was a shoe impression, and another tire mark was on the curb. Seminal fluid recovered from the victim's body was DNA tested, excluding both of defendant's previous codefendantsAlex Hernandez and Steven Buckley as possible sources, but not defendant or Brian Dugan, an individual convicted of several other sexual assaults and murders of young females, who indicated he alone killed Jeanine Nicarico. The State did not, however, introduce physical evidence linking defendant to the crime. Handprints recovered from the Nicarico home did not match those of the defendant and none of the four shoeprints or impressions found on or near the home were proven to have been made by defendant.
Lieutenant E. Stephen Tornfeather Townsend of the Lake County sheriff's department, the trainer of the canine unit, testified about the actions of two of his bloodhounds during the police investigation conducted around the Nicarico home. According to Towns-end, his dogs trailed two different paths when directed to scent from Jeanine's bedsheets, the footprint on the front door, and the shoe impression in the tire mark located in the grass.
The defense presented the testimonies of Richard Nitz and John Pecoraro in rebuttal to Turner's testimony. Like Turner, both men are convicted murderers housed in the condemned unit at Menard Correctional Facility. Both testified that during the summer of 1989, Turner told them that he knew of a way to get off death row. Nitz testified that Turner advised finding out a little information about a case through research and conversations, then putting a "little twist" on it, and sending a letter to prosecutors in the particular county to make a deal. The testimony of both men, however, was inconsistent with respect to the circumstances of their conversations with Turner.
Defendant was convicted, substantially on the basis of this evidence.
On appeal, defendant supplements the record with additional authority consisting of this court's opinion in People v. Turner (1993), 156 Ill. 2d 354, 189 Ill. Dec. 713, 620 N.E.2d 1030. Turner concerns our Disposition of Robert Turner's appeal of his resentencing. Turner was awaiting this resentencing when he testified at defendant's trial. Our opinion refers to the fact that Assistant State's Attorney Robert Kilander testified in behalf of Turner at his resentencing hearing. Specifically, Kilander testified that Turner had "voluntarily provided testimony in the trial of Rolando Cruz" and was cooperative, posing no problem during transport for defendant's trial. On cross-examination, Kilander testified that, "before testifying in the Cruz case, [Turner] wanted to make certain that Kilander would testify on [Turner's] behalf at [Turner's] resentencing hearing." Kilander further testified that "[Turner] appeared to him to be a 'calculating individual, a person that thinks things out.'" ( Turner, 156 Ill. 2d at 363.) We believe this additional authority clearly impugns Turner's testimony at defendant's trial concerning any agreement he might have made with the State.
Defendant raises numerous issues on appeal, including the propriety of several evidentiary rulings and the sufficiency of the evidence. We need only consider whether the trial court abused its discretion in: (1) excluding exculpatory evidence concerning a nontestifying third party's admitted crimes and the circumstances of his confessions to those crimes; (2) permitting the State to impeach its witness and rely on the resulting impeachment evidence in closing argument; and (3) admitting evidence of bloodhound trailing; we also consider (4) whether guilt was found beyond reasonable doubt. Additionally we must address several issues likely to recur on retrial: whether evidence concerning a witness' other crimes and evidence concerning the prosecution's changed theory of the murder site were properly excluded.
Evidentiary rulings are within the sound discretion of the trial court and will not be disturbed on review unless the trial court has abused its discretion. People v. Boclair (1989), 129 Ill. 2d 458, 476, 136 Ill. Dec. 29, 544 N.E.2d 715; People v. Bowel (1986), 111 Ill. 2d 58, 68, 94 Ill. Dec. 748, 488 N.E.2d 995; see also People v. Illgen (1991), 145 Ill. 2d 353, 364, 164 Ill. Dec. 599, 583 N.E.2d 515.
Admissibility of Evidence Concerning Dugan's Other Crimes
Defendant argues that the trial court erred in excluding evidence concerning Dugan's other crimes and that his accepted confessions to those crimes were contemporaneous to his Nicarico statements. According to defendant, the other-crimes evidence provided by Dugan's confessions as well as the circumstances of those confessions lent credence to Dugan's Nicarico statements that he alone killed Nicarico. The State initially argues that the trial court should not have admitted Dugan's Nicarico statements in the first instance. Had the trial court properly ruled that Dugan's Nicarico statements were inadmissible, argues the State, there would have been no need for the court to consider any evidence corroborating those statements. According to the State, Dugan's Nicarico statements constituted inadmissible hearsay because they were not statements against his penal interest. We preliminarily note that the State has not cross-appealed from the trial court's ruling which admitted Dugan's Nicarico statements. Thus, we consider any factor relating to the admissibility of Dugan's Nicarico statements only to the extent that it is raised by the State's counterargument of this issue.
Background to Brian Dugan's Nicarico Statements and His Confessions to Other Crimes
In 1985, while defendant's first appeal was pending, Brian Dugan was arrested in La Salle County in connection with the kidnapping, rape and murder of eight-year-old Melissa Ackerman. In June, shortly after Dugan's arrest, police from Du Page County attempted to speak with Dugan about the Nicarico murder, but Dugan refused. Sometime in September or October 1985, however, Dugan began authorizing his attorney to convey to La Salle County prosecutors that he was responsible for the murders of Ackerman, Donna Schnorr and an unidentified person in Du Page County.
Dugan told La Salle County prosecutors, through his attorney, that he would confess to these murders and other offenses he had committed if he could obtain a plea agreement for a life sentence in the Ackerman case. At the time, Dugan was a suspect in the Schnorr murder, but he had not yet been charged with that crime. A La Salle County prosecutor subsequently deduced that the Du Page County murder referred to by Dugan was that of the Nicarico child. The prosecutor told Dugan that he knew it was the Nicarico murder and that he planned to contact Du Page County authorities.
On November 13, 1985, Du Page County prosecutors met with Dugan's attorney to discuss Dugan's knowledge of the Nicarico murder. Dugan authorized his counsel to convey to the prosecutors that he had killed Jeanine Nicarico and was prepared to plead guilty to the offense in exchange for their commitment not to seek the death penalty. The prosecutors apparently did not accept Dugan's proposal, later terming the Discussions as "fruitless."
On November 16, 1985, in accordance with previous Discussions, Dugan confessed to the Ackerman and Schnorr sexual assaults and murders, two other sexual assaults and an attempted abduction. As part of this plea agreement, Dugan agreed to answer truthfully policequestions about the Nicarico murder and another murder in McHenry County which Dugan denied committing. The La Salle and Kane County State's Attorneys expressed satisfaction that Dugan was responsible for the crimes and agreed to accept Dugan's guilty pleas. Dugan stated that he wanted to "clear the books" regarding the only other murder he had committed and did not want to see two innocent persons executed. Because no Du Page County authorities were present to discuss any possible plea agreement, Dugan gave a statement, couched hypothetically and initially related through his attorney to Illinois Department of Criminal Investigation (DCI) officers that he had abducted, raped and murdered Jeanine Nicarico. All present were aware that Dugan's statement concerned the actual Nicarico crime. In the course of the interview, Dugan began directly relating information to the DCI officers and drew sketches of the crime site.
Dugan's essential Nicarico statement was that he was driving around in his green Plymouth Volare, smoking marijuana, and found himself in the area of Naperville. He stopped at the home of an elderly woman and borrowed and returned a screwdriver because he was having car problems. His car continued to have problems and he approached the Nicarico home to borrow another screwdriver. When he observed Jeanine through a window in the door and became aware that she was alone, he kicked the door open and entered. He indicated that he grabbed the child, secured her hands in some fashion, maybe her feet, obtained tape from his car, maybe moved his car in the driveway, returned to the home, blindfolded the child with the tape and a towel, gagged her, wrapped her in a bed sheet and abducted her after placing her in his car (witnesses' accounts differ as to whether Dugan said he put her in the front seat or the back seat). According to Dugan, hethen drove to the wooded Prairie Path where he untied her, made her get in the back seat, maybe had forcible oral sex, and completed anal rape of the victim (witnesses' accounts differ concerning whether Dugan said he attempted vaginal intercourse). Dugan affirmed that he was "high" on marijuana at the time. Dugan indicated that, once outside the car, he struck the child several times on the head with a tire iron, she hit her head on the car as she fell, and he dragged her body to an area with bushes, then struck her again with a fallen tree branch. According to Dugan, he left the tree branch at the scene, but took the tire iron. Dugan's several Nicarico statements varied somewhat and contained inconsistencies, but not more than other evidentiary statements properly admitted in this case.
On November 19, 1985, Dugan was found guilty of Ackerman's kidnapping, rape and murder, the several sexual assaults and was sentenced to life with a consecutive term of years. On that same date, Dugan was also found guilty of Schnorr's kidnapping, rape and murder and sentenced to a second life term.
Within the next few weeks, Dugan made a series of statements, through his attorney, to DCI officers concerning the Nicarico murder. The officers had been asked by Du Page County prosecutors to obtain additional information. Essentially, these statements supplemented Dugan's previous Nicarico statements by providing additional details about the crime. Dugan also spoke directly to a polygraph examiner and gave a complete statement concerning the Nicarico murder. Dugan provided information about the circumstances of the murder itself, volunteered his secretor type, related that he was observed in his green Volare automobile near the murder site by "utility" workers, that he had asked an elderly woman living in the vicinity of the Nicarico home for a screwdriver to fix his car shortlybefore the crime, that he had missed work the day of the crime, and that fibers on the towel he used to blindfold Jeanine could be traced by police to the trunk of his mother's boyfriend's car. Dugan also participated in a drive-around with police to locate the Nicarico home and the Prairie Path, and submitted to polygraph examination and hypnosis.
Throughout these Discussions, Dugan made statements about the Nicarico murder on the condition that they could not be used as evidence against him. No assistant State's Attorneys, however, were involved in these Discussions which occurred after Dugan was convicted and sentenced for the murders of Ackerman and Schnorr. Dugan provided information about the crime in the belief that he could obtain a third life sentence for Nicarico's murder, which term he was willing to accept. Dugan's defense counsel believed that unless deals were made for all of Dugan's crimes, Dugan had "some exposure." On at least one occasion, Dugan's counsel requested that police convey the information to the Du Page County authorities. Dugan never engaged these authorities in any further plea Discussions about the Nicarico crime.
Prior to defendant's trial, the State filed a motion in limine to exclude Dugan's Nicarico statements. The trial court first determined as a matter of law that Dugan's Nicarico statements were against his penal interest and therefore met a threshold requirement for admissibility as a hearsay exception. The trial court then conducted a three-week long evidentiary hearing to determine whether there were additional indicia of the statements' trustworthiness to warrant their admission. (See Chambers v. Mississippi (1973), 410 U.S. 284, 302, 35 L. Ed. 2d 297, 313, 93 S. Ct. 1038, 1049.) More than 30 live witnesses testified and the stipulated testimony of 15 additional witnesses was also introduced.
Incidentally, we note that the Dissenters urge us to conduct a de novo review of the evidence offered at this hearing. However, the State did not contend on appeal that this evidence was insufficiently corroborative of Dugan's Nicarico statements. The State only contends, with respect to the admissibility of Dugan's statements, that the statements were not against his penal interest. The State's challenge on appeal of the trial court's ruling admitting the evidence is therefore limited to that extent. In doing so, the State apparently conceded at that time that the evidence was corroborative of Dugan's Nicarico statements, despite the Dissenter's present imaginative characterization of it. However, to the extent that the Dissenters and the State's brief in opposition to rehearing now argue the matter, we believe it appropriate to present these additional facts. Nonetheless, while presenting the evidence in some detail, we do not decide whether the trial court abused its discretion to the extent that it found the evidence to be sufficiently corroborative. We confine our review to the issues presented on appeal. Moreover, even were we to engage in such a determination, our review could not be a de novo review of the evidence as is suggested by the Dissenters' review. In short, the State did not appeal the trial Judge's ruling that this evidence was sufficiently corroborative, nor could we properly second-guess that determination were we to consider that ruling. We present this evidence to indicate merely what was before the trial court.
During the course of the hearing, significant aspects of Dugan's Nicarico statements were corroborated by the evidence. First, Dugan's account showed basic familiarity with the Nicarico home. While there existed minor discrepancies in Dugan's description of specific details of the home, Dugan's account was, nonetheless, generally accurate, considering the circumstances of hispurported presence there. Dugan's description of the home's floor plan was accurate (stairs near front door, leading to below-ground recreation room; nearby stairs leading to upstairs bedrooms; wooden railing on stairs). Dugan was also able to describe certain features of the Nicarico home: he recounted correctly that there was a brown dresser in Jeanine's bedroom; that there was beige-colored carpeting in the lower recreation room and on the stairs leading down to the room; that the entry way flooring was parquet-like; that the television in the lower recreation room was set apart from other furnishings in the room; that colors in the home were light; that certain doors opened in particular directions; that the bed on which he threw the victim was unmade. (Jeanine's sister testified that she had not made the bed that morning, but had simply covered it with a spread.)
Dugan also suggested to police investigators that they conduct a drive around for him to locate the Nicarico home and the Prairie Path. During the drive around, Dugan was able to provide detailed and accurate directions to the home as well as to the vicinity of the Prairie Path. Notably, regardless of any mailbox name or street sign identifiers of either the home or the Prairie Path, Dugan demonstrated an awareness of where the home and murder site were actually located. Dugan provided directions to as well as identified those sites. The evidence shows, for example, that during the drive around, after looking for the screwdriver lady's home, police asked Dugan to specifically locate the Nicarico home. Dugan replied that they had already driven past it. He then correctly directed the driver to take several turns. According to the agent, at that point "we were still westbound approaching Clover Street, and he stated something to the effect that it is the next street, turn left, it should be the second house on the left." Upon locating the Nicarico home during the drive around, Dugan also correctly recognized that there had been certain changes made to the home's exterior since the time of the murder.
There were also several facts introduced which served to corroborate Dugan's Nicarico statements. Dugan's work records revealed that he missed work the day of the murder; the shoeprint appearing on the front door of the Nicarico home was made by a right foot which kicked the door twice, just as Dugan had related. The print was also consistent in size and type with Dugan's shoes at the time. Perhaps most corroborative was the fact that a police investigation of the cloth tape used to wrap the victim's head, which was conducted after Dugan made his statements, revealed the tape to be exactly as he had described it in detail: three-fourths to one inch wide, several feet long, with serrated edges and sold packaged in a metal container at the time of the murder. (By the time of the statement, the tape was no longer packaged in metal.) Although not nearly as significant, evidence was also introduced that Dugan's repossessed auto was missing a tire jack, the instrument he had identified as the murder weapon.
Witnesses also testified that they saw a person similar to Dugan on the Prairie Path on the afternoon of the murder. According to Dugan's Nicarico statements, he was observed with his green 1980 Plymouth Volare auto on the Prairie Path around the time of the murder by two "utility" workers. According to a prior owner, as well as a subsequent police investigator, Dugan's auto was missing one hubcap. Evidence was presented during the hearing that, on the afternoon of the murder, two tollway workers observed a male Caucasian in his late twenties in a green car with a missing hubcap in the vicinity of the Prairie Path. The testimony was conflicting, however, in terms of the exact type and color of vehicle (green or dark-green, Plymouth Volare or FordGranada), and the exact time of the encounter (2:45, 2:30, or 3:15 p.m). One of the workers unequivocally testified, too, that Dugan was not the man he had observed. The other worker testified that Dugan's Volare could have been the vehicle he saw. There were also discrepancies surrounding whether Dugan and the person observed exited the vehicle or whether the vehicle was stuck in the mud. However, it was also determined that a tire impression discovered by police on the Prairie Path was made by a Goodyear "Viva" tire, a particular type of tire issued as original equipment on the 1980 Plymouth Volare, but not on the Ford Granada.
Eloise Suk, a worker in a church located several blocks from the Nicarico home, testified that Dugan came into the church during the afternoon of the murder, asked about a job application, and wrote down his name and phone number. Suk's testimony concerning the exact time of the visit has varied; however, the time frame consistently remains sometime between 1:10 and 2:23 p.m. Suk consistently testified that the day of Dugan's visit was a Friday. United States Department of the Treasury Agent Thomas Fischer, the person to whom Suk reported this incident, testified that Suk referred to the day as a Friday, but in testifying, Fischer, himself, apparently mentioned the wrong date, February 23 rather than February 25. According to Suk, she later recalled Dugan's visit both because she recognized that his name was Irish and thought his spelling of it was uncommon; and because, as a cartoonist, she paid attention to facial physiognomy. Although Dugan has never mentioned visiting the church that afternoon, Lauren Fessler and Kelly Fessler, Suk's daughter and son-in-law, both testified that Suk reported the visit to them several days after it occurred and that Suk raised it again following Dugan's arrest in theMelissa Ackerman murder, well before Dugan became publicly associated with the Nicarico murder. This fact is true as well in the case of Suk's report to Fischer on September 15, 1985.
Other aspects of Dugan's statements were shown to be inconsistent, including, inter alia, that he did not see a 22-foot sailboat in the Nicarico driveway, did not see a pet, believed there was a chain on the front door, was unsure about whether the stairs leading to the Nicarico upstairs bedrooms were to the right or the left, was incorrect about a small nightstand in Jeanine's bedroom, was equivocal about what happened to the tire iron, and was inconsistent in his description of the house of the elderly woman from whom he borrowed the screwdriver or how many persons were there. In this regard, the trial court did not have evidence before it concerning two of the several inconsistencies pointed out by the Dissenters. Neither is this evidence now properly before this court. The statement attributed to Suk which appeared in the Chicago Lawyer article, referred to by the Dissenters (slip op. at 75), was not introduced into evidence; neither was the written statement by Dugan referring to defendant and Hernandez as "baby killers" introduced (slip op. at 78). Based on the evidence properly before it, the trial court concluded, however, that there existed "sufficient corroborating circumstances" to justify the admission into evidence of Dugan's Nicarico statements under the against-penal-interest exception to the hearsay rule (see People v. Bowel (1986), 111 Ill. 2d 58, 66, 94 Ill. Dec. 748, 488 N.E.2d 995).
Dugan's Nicarico statements were introduced at defendant's trial through the testimony of police officers and Dugan's attorneys. The defense sought to similarly introduce the facts of Dugan's other admitted crimes and that he confessed to them contemporaneous to his Nicarico statements. The evidence concerning Dugan's five admitted assaults was as follows:
1. On June 2, 1985, around noon, Dugan, while driving around alone in his car, smoking marijuana, noticed Melissa Ackerman, an eight-year-old Caucasian girl and her eight-year-old female playmate riding bicycles in Somanauk, La Salle County. Dugan approached, ostensibly to ask for directions, and then grabbed and threw them in his auto. Ackerman's playmate escaped from the car and Dugan drove off with Ackerman. Dugan made Ackerman sit on the front, passenger-side floor of the car and covered her with a sleeping bag. He drove to a wooded area, tied Ackerman's hands behind her back, and anally sexually assaulted her. Dugan drowned Ackerman in a nearby creek and then attempted to hide her body under rocks.
2. On July 15, 1984, Dugan was driving alone in his car in Aurora and noticed Donna Schnorr, a 27-year-old Caucasian female, driving her car. Dugan followed her to a remote stretch of road in Kane County and forced her car off the road. Dugan struggled with Schnorr, tied her hands behind her back and drove her in his car to a secluded water-filled gravel pit. He then forced her to engage in sexual intercourse and oral sex. Dugan killed Schnorr by blunt trauma to the head and drowning.
3. On May 6, 1985, Dugan was driving alone in his car, in the early morning and followed a 21-year-old Caucasian female, also driving a car, to her home in North Aurora, Kane County. He approached her on foot as she sat in her parked car, engaged her in conversation, forcibly entered her car, and produced a knife. Dugan gagged her, took her into his car and blindfolded her. He then drove to a nearby secluded area and sexually assaulted her in the back seat of his auto. Dugan drove her to her residence parking lot and released her after telling her his name and where he went to high school. She later identified Dugan in a lineup.
4. On May 28, 1985, in the late afternoon, Dugan was driving alone in his car and approached a 19-year-old Caucasian woman, walking along a State highway in Geneva, Kane County. Dugan attempted to force the woman into his car, but she escaped. She later identified Dugan in a lineup.
5. On May 29, 1985, Dugan was driving alone in his carand approached a 16-year-old Caucasian girl as she walked along a street in Aurora, Kane County, in the early evening. Dugan forced her into the front floor passenger area of his car, placed a blanket over her and threatened her with a tire iron. He drove to a remote area in rural Will County, took her from the car by a belt around her neck, removed her clothing, removed his, and sexually assaulted her. Dugan then drove her to her home and released her after telling her his name and where he went to high school. Police later recovered the belt from the area of the assault. The victim identified Dugan in a lineup.
The trial court ruled that this evidence was inadmissible under a theory of modus operandi. The jury was allowed to hear only that Dugan had been convicted of several sexual assaults and the murders of Ackerman and Schnorr.
Admission of Dugan's Nicarico Statements as Statements Against Penal Interest
The State initially argues that Dugan's Nicarico statements were not against penal interest, were therefore not admissible, and there is thus no need to consider the admissibility of additional evidence of Dugan's other crimes. As stated previously, the State did not challenge on appeal the admission of Dugan's Nicarico statements on any other basis. Thus, we do not consider the appropriateness of the trial court's finding that Dugan's Nicarico statements were sufficiently corroborated. Given the record before us, we are satisfied the trial court's finding was in full compliance with the standards relied upon in People v. Bowel (1986), 111 Ill. 2d 58, 68, 94 Ill. Dec. 748, 488 N.E.2d 995.
An extrajudicial declaration not under oath, by the declarant, that he, and not the defendant on trial, committed the crime is inadmissible as hearsay, though the declaration is against the declarant's penal interest. ( People v. House (1990), 141 Ill. 2d 323, 389-90, 152 Ill. Dec. 572, 566 N.E.2d 259; Bowel, 111 Ill. 2d at 66.) Such declaration may, however, be admitted where Justice requires. ( House, 141 Ill. 2d at 390; Bowel, 111 Ill. 2d at 66, citing People v. Lettrich (1952), 413 Ill. 172, 179, 108 N.E.2d 488.) Thus, where there are sufficient indicia of trustworthiness of such extrajudicial statements, a declaration may be admissible under the statements-against-penal-interest exception to the hearsay rule. Bowel, 111 Ill. 2d at 66, citing Chambers v. Mississippi (1973), 410 U.S. 284, 302, 35 L. Ed. 2d 297, 313, 93 S. Ct. 1038, 1049.
The Chambers court referred to four specific objective indicia of trustworthiness: (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and against the declarant's interest; and (4) there was adequate opportunity for cross-examination of the declarant. ( Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49.) The presence of all four factors is not a condition of admissibility. "They are indicia, not hard and fast requirements." ( House, 141 Ill. 2d at 390, citing Bowel, 111 Ill. 2d at 67.) The question to be considered in deciding the admissibility of such an extrajudicial declaration is whether it was made under circumstances which provide "considerable assurance" of its reliability by objective indicia of trustworthiness. Bowel, 111 Ill. 2d at 67, quoting Chambers, 410 U.S. at 300-01, 35 L. Ed. 2d at 311-12, 93 S. Ct. at 1048-49; People v. Tate (1981), 87 Ill. 2d 134, 143-44, 57 Ill. Dec. 572, 429 N.E.2d 470.
The State's sole argument on appeal concerning Dugan's Nicarico statements is that they were not against his penal interest and should not have been admitted for that reason. According to the State, Dugan's Nicarico statements were made in plea negotiationsand therefore the statements were not admissible against him in any prosecution for the instant crime. (See 134 Ill. 2d R. 402(f) (plea Discussion, agreement, plea, or judgment is not admissible against defendant in any criminal proceeding).) The State further asserts that Dugan already faced natural life sentencing for the murders of Ackerman and Schnorr and gave the Nicarico statements knowing that he could suffer no additional penalty in making them.
Whether Dugan's Nicarico statements were admissible as evidence in a prosecution against him is not alone determinative of whether they were against his penal interest. To say that Dugan's statements were not against his penal interest because he made them so that they could not be used as evidence against him misapprehends the necessary analysis. Actually, the very fact that a defendant under Rule 402(f) is protected from the evidentiary use of his plea-related statements, except as a basis for a guilty plea, reflects that such statements are considered generally to be against a defendant's interest. Cf. United States v. Scopo (2d Cir. 1988), 861 F.2d 339 (third party's allocution in entering guilty pleas admissible as statement against interest); United States v. Gotti (E.D.N.Y. 1986), 641 F. Supp. 283 (defendant and third parties' pleas and allocutions are admissible as statements against interest under Federal Rule of Evidence 804(b)(3).
While Rule 402(f) might have prohibited the evidentiary use of Dugan's Nicarico statements in a prosecution against him, the information the statements conveyed is not similarly immunized. Dugan could always be prosecuted on the basis of that information, regardless of whether the statements, themselves, were admissible as evidence against him. Moreover, Dugan provided an abundance of information from which independent evidence usable against him might potentiallybe developed (secretor type, fibers from blindfold towel said to be traceable to mother's boyfriend's car, etc.). Thus, Dugan's statements themselves could not be used against him, but they offered a means for police to acquire evidence which could be. The offer of a plea can always be withdrawn by a defendant and nothing prevents the prosecution from refusing the offer of a plea and independently proceeding against a defendant. Cf. People v. Mack (1984), 105 Ill. 2d 103, 116, 85 Ill. Dec. 281, 473 N.E.2d 880 (a prosecutor has the responsibility of evaluating all of the pertinent factors in making his decision whether or not to seek the death penalty and, in doing so, he may properly consider the attitude of the victim's family as one of those factors, thereby rejecting a defendant's proposal to plead guilty in exchange for a life sentence).
Moreover, it is the qualitative content and circumstances of Dugan's statements, rather than their evidentiary value, which determines whether they were against his penal interest. An understanding of the chronology of Dugan's plea bargaining is helpful. The record shows that Dugan's November 13 statement indicating that he killed Jeanine Nicarico was made through his attorney to Du Page County prosecutors in pursuit of a plea agreement for her murder. At the time, Dugan was not at the focus of the Nicarico murder. Dugan made this statement in an attempt to negotiate a plea agreement for the instant murder and, as such, fully implicated himself, regardless of whether his statements could have been used as evidence against him. In fact, by making the statement in the context of plea Discussions, Dugan was seeking to persuade Du Page County prosecutors to agree to subsequently accept a consistent confession in support of a guilty plea. Quite obviously then, by making such statement, Dugan was exposing himself to the prospect of criminal prosecution; indeed, that was the whole point in making thestatement. Such statement was thus clearly against his penal interest.
Secondly, the record demonstrates that Dugan made this first Nicarico statement, not in furtherance of the proposed plea agreement for life sentences, with respect to the Ackerman and Schnorr murders, but to negotiate a plea agreement for this crime.
While Dugan's second Nicarico statement on November 16 might have been made to help negotiate life sentences for both the Ackerman and the Schnorr murders, such statement, nonetheless, continued to expose Dugan to potential prosecution and imposition of the death penalty for the Nicarico murder. When DCI authorities indicated they were prepared to question Dugan about a McHenry County murder, Dugan specifically indicated that the information he possessed pertained to Nicarico. If Dugan had been seeking merely to gain negotiating leverage by displaying knowledge about multiple unsolved murders, he need not have continued to implicate himself in this particular crime. Furthermore, the Ackerman-Schnorr plea agreement simply required that Dugan truthfully answer police questions about the Nicarico murder; it did not require that Dugan implicate himself or offer unrequested details about the crime.
Dugan's Nicarico statements made after his convictions and sentencings for the Ackerman and Schnorr murders represented a resumed attempt to negotiate a plea agreement with respect to the Nicarico murder. Because he had already been convicted and sentenced for those crimes, there was no continuing obligation on Dugan's part to continue answering police questions about Nicarico. At this point, even though Dugan had received two life sentences, he still faced, according to his counsel, "some exposure" because he could still be prosecuted and sentenced to death for the Nicarico murder. These later Nicarico statements of Dugan's were made to negotiate the elimination of that possibility.
The information Dugan provided police could and still potentially can result in his prosecution for the Nicarico murder for which he can still receive the death penalty. In this case, it should matter little that the State chose not to pursue Dugan and seek the death penalty, as this potentially was and still is a possibility. It matters little for our purposes here, as well as for Dugan's purposes at the time, that Du Page County officials appeared uninterested; at any time, they could have changed their posture and chosen to prosecute him, even seeking the death penalty.
Indeed, the State so much as admits this fact. The argument the State employs on appeal to support a denial of immunity is that it may choose to prosecute Dugan in the future. Accordingly, we find that Dugan's Nicarico statements were clearly against penal interest and met the threshold requirement for admissibility as an exception to the hearsay rule.
Evidence Concerning Dugan's Other Crimes
According to defendant, evidence concerning Dugan's five admitted crimes and the circumstances of his confessions to those crimes was admissible under several theories: (1) the evidence was relevant to show Dugan's modus operandi; (2) it corroborated the truth and accuracy of Dugan's Nicarico statements; (3) it rebutted the State's proposition that defendant committed this murder with Dugan; and (4) it demonstrated that he possessed the requisite motive (pedophilia) to have assaulted the child victim here. Although at trial defendant argued only that evidence of Dugan's other crimes was admissible on the basis of modus operandi, on appeal the parties fully briefed these several theories supporting the admission of the evidence. Under such circumstances, we may consider the admissibility of theevidence based on these theories as well. See People ex rel. Daley v. Datacom Systems Corp. (1991), 146 Ill. 2d 1, 27, 165 Ill. Dec. 655, 585 N.E.2d 51 (exception to the general waiver rule exists if question is one of law and is fully briefed and argued by the parties).
The basic rule is that all relevant evidence is admissible unless otherwise provided by law. (See People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288, 139 N.E.2d 780.) In addition to specific laws that may require exclusion, a court may generally exclude relevant evidence if its probative value is outweighed by such dangers as unfair prejudice, jury confusion, or delay. As an outgrowth of this principle, a general rule has developed that evidence of offenses other than those for which a defendant is being tried is inadmissible. ( People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489.) "The underlying rationale is that such evidence 'is objectionable "not because it has no appreciable probative value, but because it has too much."'" ( People v. Romero (1977), 66 Ill. 2d 325, 330, 5 Ill. Dec. 817, 362 N.E.2d 288, quoting People v. Lehman (1955), 5 Ill. 2d 337, 342, 125 N.E.2d 506; see also People v. Hendricks (1990), 137 Ill. 2d 31, 52, 148 Ill. Dec. 213, 560 N.E.2d 611.) "The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime. And so, as a matter of policy, where the testimony has no value beyond that inference, it is excluded." People v. Lehman (1955), 5 Ill. 2d 337, 342, 125 N.E.2d 506.
This court has repeatedly held that evidence of other crimes is admissible "if it is relevant for any purpose other than to show the propensity to commit crimes." (Emphasis added.) People v. Phillips (1989), 127 Ill. 2d 499, 520, 131 Ill. Dec. 125, 538 N.E.2d 500; see People v. Evans (1988), 125 Ill. 2d 50, 125 Ill. Dec. 790, 530 N.E.2d 1360; see also E. Cleary, McCormick on Evidence § 190, at 448 (2d ed. 1972) (range of permissible uses of other-crimes evidence is "almost infinite").
Where other-crimes evidence is offered, it is admissibleonly where the other crime bears some threshold similarity to the crime charged. (See Illgen, 145 Ill. 2d at 372, quoting People v. Bartall (1983), 98 Ill. 2d 294, 310, 74 Ill. Dec. 557, 456 N.E.2d 59.) This threshold requirement serves to increase the relevancy of the evidence and ensures that the evidence is not being used solely to establish a defendant's criminal propensities. (See People v. Bartall (1983), 98 Ill. 2d 294, 310, 74 Ill. Dec. 557, 456 N.E.2d 59.) In cases where evidence of other crimes is offered, however, to establish modus operandi or a common design or plan, a "high degree of identity" between the facts of the crime charged and the other offense has been required. ( Illgen, 145 Ill. 2d at 373; see also People v. Tate (1981), 87 Ill. 2d 134, 141, 57 Ill. Dec. 572, 429 N.E.2d 470 (other-crimes evidence "is found to be relevant and admissible as proof of modus operandi only upon a strong and persuasive showing of similarity").) This high degree of identity between the other offense and the charged crime is necessary because modus operandi refers to a pattern of criminal behavior so distinctive that separate crimes are recognized as the handiwork of the same wrongdoer. (See M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 404.5 (5th ed. 1990).) This court has also recognized that even where such evidence is offered to prove modus operandi "some dissimilarity will always exist between independent crimes." People v. Taylor (1984), 101 Ill. 2d 508, 521, 79 Ill. Dec. 151, 463 N.E.2d 705; see also People v. Phillips (1989), 127 Ill. 2d 499, 520-521, 131 Ill. Dec. 125, 538 N.E.2d 500 ("test is not one of exact, rigorous identity").
That same degree of identity between the two offenses is not necessary when evidence of the other crime is offered for some purpose other than modus operandi. ( Illgen, 145 Ill. 2d at 373; People v. McKibbins (1983), 96 Ill. 2d 176, 185-86, 70 Ill. Dec. 474, 449 N.E.2d 821.) Thus, where a defendant's involvement in another offense was offered to prove the absence of an innocent frame of mind or the presence of criminal intent, mere general areas of similarity havesufficed. Illgen, 145 Ill. 2d at 373; McKibb i ns, 96 Ill. 2d at 185-86; see also People v. King (1986), 109 Ill. 2d 514, 94 Ill. Dec. 702, 488 N.E.2d 949 (evidence of defendant's other crime relevant and admitted to establish accuracy of confession without analysis concerning degree of identity between two crimes); People v. Baptist (1979), 76 Ill. 2d 19, 27, 27 Ill. Dec. 792, 389 N.E.2d 1200 (no analysis concerning degree of identity between two crimes when evidence offered to show consciousness of guilt).
In this case, defendant sought to introduce exculpatory evidence concerning a nontestifying, third party's crimes and the circumstances of his confessions to those crimes. We agree with defendant that in cases where a defendant seeks to introduce other-crimes evidence to exculpate himself, there is usually no need for the trial court to be concerned with balancing probative value against prejudicial effect. (See 1 S. Gard, Illinois Evidence Manual 48 (Supp. 1990) ("reasons for exclusionary rule when applied to the defendant in a criminal action do not exist in the case of other persons").) Thus, as this court recognized in Tate, the most recent case dealing with other-crimes evidence offered by a defendant, such evidence is admitted where the evidence contains "significant probative value" to the defense without any reference to the element of prejudice. Tate, 87 Ill. 2d at 143. See also M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 405.5, at 196 (5th ed. 1990).
Other courts have also recognized that there is a distinction between the limits imposed on a defendant's use of other-crimes evidence to exculpate himself and the State's use of such evidence to prosecute him. See United States v. Cohen (11th Cir. 1989), 888 F.2d 770, 777; United States v. Aboumoussallem (2d Cir. 1984), 726 F.2d 906, 911; United States v. Stamper (W.D.N.C. 1991), 766 F. Supp. 1396, 1406; State v. Garfole (1978), 76 N.J. 445, 452-53, 388 A.2d 587, 591.
Defendant contends that the evidence concerning Dugan's other crimes was admissible under a modus operandi theory to show that he "spoke truthfully when he admitted to having killed Jeanine Nicarico in the manner that he did." We disagree with defendant's assertion that Tate allows for a relaxed degree of identity between the crimes compared when other-crimes evidence is offered by a defendant. While Tate dispenses with the consideration of prejudice when such evidence is offered by a defendant, Tate requires that, "for such evidence to have significant probative value" under modus operandi, there must be a substantial and meaningful link between the offenses being compared, regardless of which party offers the evidence. Tate, 87 Ill. 2d at 143.
In the present case, evidence of Melissa Ackerman's murder only was admissible under a theory of modus operandi. In both of Dugan's accounts of the Ackerman and Nicarico murders, he was aimlessly driving around alone in his auto, smoking marijuana, before he encountered the female, Caucasian child-victim. In neither instance was the crime apparently remeditated or planned. In both accounts, Dugan recklessly abducted the victim during daylight hours, in full view, by perhaps placing the victim in the front, passenger-side area of his auto. In both accounts, Dugan attempted to hide or cover the victim with some type of bedding (sleeping bag or sheet). Both accounts also involved anal sex and the tying of the victim's hands. We find that a "substantial and meaningful" linkage was established between the compared offenses such that Dugan's confession to the Ackerman murder was probative of the truth of his account of the Nicarico murder.
The facts and Dugan's account of his remaining other crimes were also similar in significant respect to his account of the Nicarico murder. While there was nota sufficient linkage among these crimes to support admission of them all under a theory of modus operandi, there was a sufficient degree of similarity to support their entire admission for purposes other than to show modus operandi. In each murder, Dugan tied the victim's hands at some point. In all of the murders, Dugan availed himself of whatever physical material (water, tire iron, tree branch) was immediately at hand for use as a murder weapon. Several of the crimes, like the Nicarico murder, involved sexual assaults in an auto, blindfolding, tire irons, blows to the head, and the use of bedding materials. Two of the three murders involved blunt trauma, and two of the three involved drowning. Every crime involved the use of an auto to abduct the victim, and every crime involved the abduction of a young, Caucasian female. Although each crime does not bear the same similar feature, various similar features are repeated. The greatest similarity between these crimes, however, lies not in discrete and observable facts, but in the character of the assaults as a whole. ( Tate, 87 Ill. 2d at 143.) The crimes appear unpremeditated, highly spontaneous, and reckless in their regard to possible apprehension.
The requisite degree of similarity having been established, this evidence of Dugan's other crimes was admissible to corroborate his statements about the Nicarico murder. In People v. King (1986), 109 Ill. 2d 514, 94 Ill. Dec. 702, 488 N.E.2d 949, this court found that "the evidence of the other crime tended to corroborate the defendant's statements in his confession concerning the two offenses." ( King, 109 Ill. 2d at 531.) King held that "evidence regarding the * * * robbery was relevant to establish the accuracy of the confession" to the charged crime. King, 109 Ill. 2d at 531. See also People v. Kokoraleis (1989), 132 Ill. 2d 235, 258, 138 Ill. Dec. 233, 547 N.E.2d 202 (evidence of defendant's other crimes "tended to support the reliability and accuracy of the defendant's confession" to the charged murder).
The State, however, cites to People v. Romero (1977), 66 Ill. 2d 325, 5 Ill. Dec. 817, 362 N.E.2d 288, and People v. Thingvold (1991), 145 Ill. 2d 441, 452, 164 Ill. Dec. 877, 584 N.E.2d 89, for the proposition that other-crimes evidence may not be introduced to bolster a witness' credibility. The correct statement of the law in Thingvold is that evidence of other crimes is not admissible to bolster the credibility of a prosecution witness. ( Thingvold, 145 Ill. 2d at 459, citing Romero, 66 Ill. 2d 325, 5 Ill. Dec. 817, 362 N.E.2d 288.) The Thingvold court did not reach any consideration of this rule under the facts of the case, finding, as a threshold matter, that the evidence was not admissible as traditional other-crimes evidence because there was nothing connecting the defendant to the other crime. In Romero, the court rejected the State's proffered reason for using the other-crimes evidence, to enhance the credibility of its witness, as not being supported by authority. Although Romero does not expressly state, the State had failed to demonstrate that the other-crimes evidence was used for anything other than showing the defendant's propensity to commit crime. Unlike the case at bar, Romero was concerned with possible prejudice to the defendant. In this case, if the other-crimes evidence contained significant probative value to the defense, it was admissible.
In the instant case, the State attacked the reliability and accuracy of Dugan's Nicarico statements. In rebuttal, defendant attempted to corroborate the accuracy of Dugan's Nicarico statements by showing that they were given within the context of his apparently accurate and acceptable formal confessions to five other similar crimes. As in King and Kokoraleis, we believe this other-crimes evidence was probative of the accuracy of certain key evidentiary statements. The fact that Dugan formally confessed to the kidnappings, rapes and murder of a female child and young women contemporaneous to his statements that he committed similar acts against the Nicarico child speaks to the accuracy ofhis statements. Evidence is considered "relevant" if it has any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable that it would be without the evidence. ( People v. Stewart (1984), 105 Ill. 2d 22, 54, 85 Ill. Dec. 241, 473 N.E.2d 840.) We conclude that evidence of Dugan's other crimes and the circumstances of his confessions to those crimes was probative of whether Dugan's Nicarico statements were accurate and reliable. The other-crimes evidence, in its entirety, was therefore relevant and admissible on this basis.
As part of a dual strategy to combat Dugan's Nicarico statements, the State also attempted to undercut the statements in another way. Accepting that Dugan's Nicarico statements might be accurate regarding the general details of the crime itself, the State presented evidence to show defendant and Dugan's joint participation. Thus, the State presented evidence or argued that different shoeprints were found outside the Nicarico home, that bloodhounds followed different trails during the police investigation, and that Dugan accompanied defendant at Rodriguez's home around the time of the murder. In rebuttal, defendant attempted to demonstrate the implausibility of this theory by introducing Dugan's other crimes, revealing that Dugan invariably acted alone in committing similar crimes.
The State argues that this claimed basis for admitting the evidence is only a form of modus operandi. We disagree under the circumstances presented here. (But see Kokoraleis, 132 Ill. 2d at 257 (fact of defendant's presence during other crimes admissible under modus operandi to prove his participation in charged crime).) Defendant sought to introduce all of the facts of Dugan's other crimes to show that Dugan was truthful in his statements that he killed the victim. Defendant sought to introduce the fact that Dugan acted alone in every one of these admitted crimes to show that Dugandid not act with defendant as postulated by the State. The probative value of this evidence depends not on any heightened degree of identity between the crimes compared, as is the case in modus operandi, but on the consistency of Dugan's solitary conduct in similar situations.
We find that evidence that Dugan always acted alone in all his other similar crimes was probative of whether Dugan committed this crime with defendant.
Under the circumstances of this case, we believe that the evidence of Dugan's other crimes and the circumstances of his confessions to those crimes was relevant and admissible. The Dugan-Cruz linkage was an essential element of the State's case. Defendant was thus entitled to rebut the evidence of that linkage with nonprejudicial and relevant evidence. The exclusion of the Dugan other-crimes evidence was, accordingly, an abuse of discretion.
Impeachment of Erma Rodriguez
At trial, Erma Rodriguez, defendant's cousin, was called to testify as a witness for the State. The State impeached her testimony by examining her regarding certain prior inconsistent statements. The State also presented Ramon Mares, defendant's uncle, and Detective Warren Wilkosz, who related Rodriguez's prior inconsistent statements. Defendant argues on appeal that admission of this impeachment evidence was in error, the State compounded the error by making substantive use of the evidence in closing argument, and the compounded error was not harmless or cured by jury instruction.
In its opening statement at trial, the State asserted that Irma Rodriguez saw defendant and another person in a car near her home on Easter 1983, and that severalweeks before that date, defendant came to her home early one morning, crying, agitated and emotional and asked her to mail a letter to his mother. The State asserts on appeal that it expected Rodriguez to testify, confirming the mail-request incident, and that defendant had said he was in trouble at the time, and also to testify that Dugan was the person with defendant on the particular Easter Sunday. The record reflects and the State does not deny, however, that Rodriguez told prosecutors prior to trial that she had never witnessed defendant and Dugan together.
When called, Rodriguez testified that she saw defendant on the two occasions: Easter Sunday 1983, when defendant was at her home in a parked car with an unknown male individual and argued with her father, and about one week before that incident when defendant came to her home early one morning, asking her to mail a letter to his mother. Rodriguez did not recall telling Wilkosz that the mail-request incident occurred several weeks before Easter. She also testified that defendant said nothing at the time besides requesting that she mail a letter to his mother. The prosecutor then impeached Rodriguez by introducing, in the form of a series of questions, her allegedly prior inconsistent statements made to Wilkosz and Mares. Rodriguez denied telling Wilkosz that, during defendant's early morning visit to her home, defendant was crying and very upset or said he was in trouble, or that Dugan was with defendant on Easter Sunday Rodriguez similarly denied telling Mares that Dugan was the man in the car with defendant on Easter, or that Dugan and defendant were friends and "hung around together."
Rodriguez's additional affirmative testimony, brought out under defense questioning, was essentially that Dugan had moved within a few houses of where she resided sometime around the beginning of July 1984, she had seen Dugan a few times in his yard, she did not talk to Dugan, she never saw defendant and Dugan together, she told Wilkosz and the prosecutors that she knew Dugan, and she previously told prosecutors that she had never seen defendant and Dugan together and she had seen defendant with a male Caucasian on Easter Sunday.
The State continued to impeach Rodriguez through the testimony of Mares and Wilkosz. Under direct examination, Mares testified that Rodriguez had previously related to him that Dugan was the passenger in defendant's car on Easter 1983, and that Dugan and defendant used to "hang around" the neighborhood together at a younger age. Wilkosz testified also that Rodriguez told him that Dugan was in the car with defendant on Easter, and that "several weeks" before Easter defendant visited her, crying and upset, and saying he was "in trouble."
During closing argument, the prosecutor stated several times, consistent with the impeachment testimony, that the mail-request incident occurred in late February 1983 (which was around the time of the crime). For example:
"When you weigh Erma Rodriguez' testimony, and the testimony that she told you in the courtroom and whether she told you the whole truth about what happened in late February, Saturday morning, 3:00 a.m., consider the testimony of Warren Wilkosz, Detective Wilkosz. The testimony that he told you in court, in which he said that when he interviewed Erma Rodriguez she told him --
When you consider whether Erma Rodriguez told you the truth, consider what Detective Wilkosz said. Erma Rodriguez told Detective Wilkosz that Ronnie Cruz, her cousin, came to her home on Saturday morning in late February at 3:00 a.m. He was crying, he was upset, and he told her, I am in trouble. Mail a letter to my mother."
The State's rebuttal included the following:
"[Prosecutor]: Remember what Irma Rodriguez said about the incident at 2:00 or 3:00 o'clock Saturday morning, sometime before Easter, 1983, which puts it right in the time frame of February 25, 1983. That Cruz came in, and again this streetwise, tough kid was crying and aggitated [sic], and said according to --
[Defense Counsel]: That's offered as substantive evidence, it is improper. Move to strike.
[The Court]: Only use the evidence which was received.
[Prosecutor]: I am, Judge. Who was impeaching her inability to remember what was said, when Warren Wilkosz said that Cruz was crying and he said he was in trouble and wanted her to mail a letter, an act which anybody can do by walking to a box and dropping it in.
I submit that's very strange conduct at 2:00 a.m., approximately the time of the Nicarico homicide.
Now she testified that she couldn't see the passenger in that car. But please recall that Warren Wilkosz had talked to her just weeks before, and that she told Warren Wilkosz --
[Defense Counsel]: Objection.
[The Court]: Same ruling.
[Prosecutor]: This is impeachment. She told Warren Wilkosz that the white boy in the car with Rolando Cruz on Easter, 1983, was Brian Dugan."
Our Rule 238 (134 Ill. 2d R. 238) governs impeachment of witnesses and examination of hostile witnesses in criminal cases. (See 134 Ill. 2d R. 433.) Under Rule 238(a), the credibility of a witness can be attacked by any party, including the party calling the witness. Such an attack may be accomplished by impeaching the witness with evidence of a prior inconsistent statement. (See People v. Morgan (1963), 28 Ill. 2d 55, 63, 190 N.E.2d 755.) The admission of this evidence is premised on the fact that excluding it would deprive the examining party of the opportunity to exhibit the truth and leave him prey to a hostile witness. A counter concern, however, is that such extrajudicial statements are "often highly incriminatingand are usually made outside the presence of the defendant." ( People v. Collins (1971), 49 Ill. 2d 179, 194, 274 N.E.2d 77.) What a witness states out of court and out of the presence of the defendant is pure hearsay and incompetent as substantive evidence. (See Bailey, 60 Ill. 2d at 43, citing People v. McKee (1968), 39 Ill. 2d 265, 270, 235 N.E.2d 625; Bradford, 106 Ill. 2d at 499; but see Ill. Rev. Stat. 1991, ch. 38, par. 115-10.1 (permitting substantive admissibility in criminal cases as to certain kinds of prior inconsistent statements).) Consequently, it must be borne in mind that the purpose of such impeachment evidence is to destroy the credibility of the witness and not to establish the truth of the impeaching material. (See Bradford, 106 Ill. 2d at 499; Bailey, 60 Ill. 2d at 43.) Prior inconsistent statements, with the exception of those admissible under section 115-10 1, are not to be treated as having any substantive or independent testimonial value.
Recognizing the danger that prior inconsistent statements could be improperly introduced under the guise of impeachment, this court stated in People v. Weaver (1982), 92 Ill. 2d 545, 563, 65 Ill. Dec. 944, 442 N.E.2d 255:
"A court's witness, or any witness for that matter, cannot be impeached by prior inconsistent statements unless his testimony has damaged, rather than failed to support the position of the impeaching party. The reason for this is simple: No possible reason exists to impeach a witness who has not contradicted any of the impeaching party's evidence, except to bring inadmissible hearsay to the attention of the jury.
Impeachment is supposed to cancel out the witness' testimony. It is only when the witness' testimony is more damaging than his complete failure to testify would have been that impeachment is useful." (Emphasis added.)
(Accord People v. King (1986), 109 Ill. 2d 514, 528, 94 Ill. Dec. 702, 488 N.E.2d 949.) Weaver found error in the impeachment of a witness because his testimony had not damaged the State's case, and the State's improper motivation to substantivelyuse the impeaching evidence was apparent on the face of the record. The State's improper motivation was revealed by the fact that the impeachment negated evidence which, although disappointing, was favorable to the State and resulted in the State's being left with no evidence other than the improperly used impeachment evidence to support one of its key propositions. The error was then compounded by the State's treatment of the impeachment evidence as though it were substantive evidence in the dosing argument.
"Damage" as referred to in Weaver does not occur where a party interrogates a witness about a fact which would be favorable to the examiner if true, but then receives a, reply which is merely negative in its effect on the examiner's case. (See People v. Chitwood (1976), 36 Ill. App. 3d 1017, 1024, 344 N.E.2d 611; 1 J. Strong, McCormick on Evidence § 37 (4th ed. 1992).) Such testimony is merely disappointing and not damaging since the examiner's case is no worse off than if the witness had not testified. "Affirmative damage results only from testimony that gives positive aid to an adversary's case." Graham, Prior Inconsistent Statements -- Impeachment and Substantive Admissibility: An Analysis of the Effect of Adopting the Proposed Illinois Rules of Evidence, 1978 U. Ill. L.F. 329, 372; see M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 607.4, at 349 (5th ed. 1990).
The State contends, however, that Weaver is factually distinguishable, in significant respect, from the present case. According to the State, in this case, unlike Weaver, there exists evidence (Robert Turner's testimony) besides the impeachment evidence to support the State's proposition of a Cruz-Dugan personal relationship. Thus, "the problem of Weaver, the substantive use of impeachment because there has been no other way to prove a proposition, did not exist here on the part of the People." We fail to grasp the significance of the dissimilarity relied on by the State.
In Weaver, this court referred to the absence of substantive evidence in support of the State's proposition, resulting from the State's impeachment of favorable testimony. These circumstances revealed that the impeachment was improperly motivated. In the present case, we cannot conclude to the converse, i.e., that the impeachment was properly motivated, merely because the State had other available means to prove the Cruz-Dugan personal relationship. The fact that the State had other evidence to prove this proposition is significant only to the extent that no basis was thereby offered to infer improper motive on the part of the State. Improper motive can be and was, however, shown by other circumstances. The test for determining whether impeachment is permissible depends on objectively identifiable facts from which the examiner's state of mind can be inferred. That the Weaver court could discern improper motive from the illogic of the impeachment there as well as from the absence of damage to the impeaching party's case does not mean that Weaver is not controlling here. And finally, that the State could rely on Robert Turner's testimony in its attempt to establish the Cruz-Dugan relationship in no sense shows that its impeachment of Rodriguez was properly motivated and permissible.
Weaver does, however, concern impeachment of a witness under the form of Rule 238 existing when these crimes were committed. Nonetheless, subsequent amendment of the rule did not change the principle that a witness' prior inconsistent statement could only be introduced to impeach the witness. (See Ill. Ann. Stat., ch. 110A, par. 238, Historical & Practice Notes, at 522 (Smith-Hurd 1985).) Accordingly, the affirmative damage requirement remained viable. See Bradford, 106 Ill. 2d at 500 ("[a] court's witness may be impeached by a prior inconsistent statement when the witness' testimonydamages the position of the impeaching party"); M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 607.4, at 353 (5th ed. 1990).
We agree with defendant that the enactment of section 115-10.1 of the Code of Criminal Procedure of 1963, subsequent to these crimes, supports a rigorous enforcement of the damage requirement under Rule 238(a). (See Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1(c)(2).) Now that a party can admit into evidence a "turncoat" witness' prior inconsistent statement by complying with section 115-10.1, the introduction of oral inconsistent statements under the guise of impeachment should be foreclosed. See M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 607.4, at 354-55 (5th ed. 1990); Steigmann, Prior Inconsistent Statements as Substantive Evidence in Illinois, 72 Ill. B.J. 638, 642-43 (1984).
The State, nonetheless, relies on People v. Steptore (1972), 51 Ill. 2d 208, 281 N.E.2d 642, to support the view that Rodriguez could be impeached by the use of extrinsic evidence in the form of Mares' and Wilkosz's testimony. Steptore, however, concerned an additional foundational requirement that impeachment, by extrinsic evidence, be with regard to noncollateral matters. There is no question in the present case concerning collateralness.
Based on our review of the record, Rodriguez's testimony did not 'damage the State's case. Rodriguez's affirmative testimony was entirely neutral. Rodriguez's testimony that she had not observed defendant and Dugan together was similarly neutral. This evidence neither contradicted any evidence presented by the State nor provided positive aid to defendant's body of evidence. As a result, while the State may have been disappointed that Rodriguez did not testify in accordance with what was expected of her, the prosecution's case was no worse off than had Rodriguez not taken thestand at all. Indeed, Rodriguez's testimony that Dugan once resided near her home and that he had given her family a dog was, as in Weaver, favorable, albeit disappointing, to the State. In sum, Rodriguez did not testify to anything of an adversely affirmative nature which could have justified the impeachment of her credibility. We perceive no possible reason for the impeachment of Rodriguez except to attempt to bring inadmissible hearsay to the attention of the jury. Impeachment is intended as a means to cancel out damaging testimony. There was simply no damaging testimony here to cancel. Considering the generally neutral quality of Rodriguez's testimony and the obvious value of her prior inconsistent statements as substantive evidence, we cannot but conclude that the motivation for introducing her prior inconsistent statements was improper.
The State claims that Rodriguez's "turnabout" and "retraction" damaged its case in the eyes of the jury because it "belied" the State's opening statement as to the evidence which would be presented. The State cites several authorities ( State v. Ortlepp (Minn. 1985), 363 N.W.2d 39; Gordon v. United States (D.C. 1983), 466 A.2d 1226; State v. Governor (La. 1976), 331 So. 2d 443) which supposedly support the view that a discrepancy between testimony and opening statement is important in assessing the propriety of impeachment. Reliance on these authorities for this proposition, however, requires a significant stretch of the imagination. We remain convinced that impeachment is designed to challenge the credibility of a witness and is not a means of rehabilitating counsel's arguments to the jury. Furthermore, even assuming that Rodriguez's impeachment was permissible to rehabilitate the State's opening statement, the State in opening never represented that a Cruz-Dugan relationship would be established. Thus, even under the State's theory, there would have been no justification for introducing any impeachment evidence pertaining to a critical Cruz-Dugan link. We conclude that the trial court abused its discretion in allowing impeachment of Rodriguez under the circumstances presented here. Rodriguez's testimony did not damage the State's case in the eyes of the jury. Rodriguez's prior inconsistent statements were therefore not admissible for any purpose and admission under these circumstances was impermissible.
It is well recognized that jurors may find it difficult to consider prior inconsistent statements solely to determine credibility and may afford such testimony substantive value. (See Bailey, 60 Ill. 2d at 43, citing People v. Paradise (1964), 30 Ill. 2d 381, 384, 196 N.E.2d 689.) Consequently, "'this court has repeatedly disapproved prosecutorial efforts to impart substantive character to prior inconsistent statements under the guise of impeachment.'" ...