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01/19/95 PEOPLE STATE ILLINOIS v. ROBERT BYRON

January 19, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE
v.
ROBERT BYRON, APPELLANT.



The Honorable Justice Heiple delivered the opinion of the court: Justice Freeman, concurring:

The opinion of the court was delivered by: Heiple

The Honorable Justice HEIPLE delivered the opinion of the court:

The defendant, Robert Byron, was indicted for murder, conspiracy to commit murder, home invasion, and armed robbery. He was tried in a joint trial with codefendant Harold Bean. A jury found them guilty of all charges, and both defendants were sentenced to death. Subsequently, we reversed those convictions and remanded the causes for separate trials because the defenses of the two codefendants were antagonistic. People v. Byron (1987), 116 Ill. 2d 81, 107 Ill. Dec. 192, 506 N.E.2d 1247; People v. Bean (1985), 109 Ill. 2d 80, 92 Ill. Dec. 538, 485 N.E.2d 349.

Following the second and separate trials, a jury again convicted the defendants on all counts. Byron waived his right to a jury sentencing and the trial judge again sentenced the defendant to death. This case is now before us on direct appeal by the defendant, Robert Byron. (Ill. Const. 1970, art. VI, ยง 4(b); Ill. Rev. Stat. 1981, ch. 38, par. 9-1(i); 107 Ill. 2d Rules 603, 606.) The direct appeal of his codefendant, Bean, was previously affirmed by this court. People v. Bean (1990), 137 Ill. 2d 65, 147 Ill. Dec. 891, 560 N.E.2d 258.

Defendant argues that: (1) he was denied his constitutional right to confront witnesses against him; (2) he was denied due process of law by comments the prosecutor made during closing argument; (3) he was denied effective assistance of counsel; (4) he was not proven guilty beyond a reasonable doubt; (5) the State failed to prove that defendant committed murder pursuant to a contract, thereby making him ineligible for the death penalty; (6) his sentence is disproportionate to others who participated in the crime; (7) the trial court improperly relied on evidence of defendant's prior drug use during sentencing; (8) the trial court improperly failed to conduct a preliminary investigation of defendant's allegations of ineffective assistance of counsel; (9) the trial court improperly required defendant to present mitigating evidence to preclude imposition of the death penalty; and (10) the death penalty is unconstitutional. We affirm.

FACTS

On February 20, 1981, a friend discovered the body of 81-year-old Dorothy Polulach in her home. The victim's arms and legs had been handcuffed and she had been shot twice in the back of the head.

Many were involved in the events which led up to Dorothy's murder. Three of these individuals, Ann Walters, Wayne Walters, and Robert Daniel Egan testified for the State. Ann Walters grew up in Chicago. After her parents divorced, she moved to Florida with her mother. Her father remarried Dorothy Polulach and continued to live in Chicago. Ann hated her stepmother. After her father committed suicide in December of 1979, Ann was angered to learn that her father's will left the bulk of his estate to Dorothy for life. Moreover, Ann was convinced that Dorothy played a role in her father's suicide; Ann referred to Dorothy as "the Black Widow." Ann expressed these thoughts to her old friend, Geraldine Smith, and Smith's ex-husband, Harold Bean, while she was in Chicago for her father's funeral. Bean suggested that they "get rid of" Dorothy.

Ann returned home to Florida. In May of 1980, Smith and Bean drove from Chicago to Florida to attend the anniversary party of Ann and her husband, Wayne Walters. Bean again discussed Ann's father's will. He offered to kill Dorothy for a sum of money. Later in June of the same year, Bean flew down to Florida to discuss details of the murderous proposition with Ann and Wayne. Ann loaned Bean $2,500 to "get the ball rolling."

In early February of 1981, Robert Daniel Egan lived with defendant, who was married to Egan's sister. One evening, while Bean was visiting defendant, defendant entered Egan's bedroom and asked Egan if he would like to make some money. Defendant told Egan that he would only be required to drive a car and to drop some people off and pick them up. Egan then went into the kitchen and saw Bean. Bean and defendant were friends. Bean told Egan that the plan was "his score" and that there would be "big diamonds and antiques."

On February 17, 1981, the evening of the murder, Bean, Egan and defendant again met at defendant's home. Bean donned a priest's smock with a priest's collar, a black trench coat and a brown wig. The three left for the Polulach residence. At approximately 6:45 p.m., Egan dropped Bean and defendant off a few blocks from the Polulach home, and, pursuant to instructions, drove to a nearby roller skating rink and waited. However, defendant returned to the car 30 to 45 minutes later. He reached under the seat, retrieved a .38-caliber revolver, and explained that they forgot the gun and might need it. Defendant told Egan to drive down the street in about 15 minutes. Egan did so, and he retrieved defendant and Bean as they walked along the street.

On February 18, Ann purchased a plane ticket for Bean and he flew down to Florida. When Ann and Wayne picked up Bean from the airport, he told them details concerning the murder. Bean told them that he had two partners, but he did not mention their names. Bean also informed them that he disguised himself as a priest. Bean took Dorothy upstairs to the second-floor landing and put a gun to the back of her head. However, the gun misfired, so he asked his partner to get another gun. Bean told Ann and Wayne that Dorothy was full of fight and told him he did not have the guts to kill her. Bean shot Dorothy twice. Bean subsequently urged Wayne to borrow $2,000 or $3,000 to pay him, but Wayne refused.

Bean returned to Chicago. Upon his return, he met with Ann, who came to Chicago to attend Dorothy's funeral. He told Ann that his partners were very upset because they were unable to get anything valuable from the defendant's home. Bean told Ann that his partners knew who she was and that if they did not get more money, something bad was going to happen. Bean said one of his partners was "off the wall" because his daughter had run away and the police had been around his house. Bean told her that his partners wanted $10,000. Ann told him that she did not have that much money, but would try to raise $5,000.

The next time Ann saw Bean in Chicago, Bean told her he wanted half the money generated from her father's estate. Ann told Bean that it was not her money; it was her mother's money. Bean said that without him, her mother would not have the money.

About a week after the crime, Egan received a phone call from Bean at defendant's house. Bean wanted Egan to pick him up at O'Hare airport. Egan and defendant drove to O'Hare and retrieved Bean. On their return from the airport, Bean told Egan that "you can add another round to your bag of tricks, a murder." Bean told Egan that he had a lot of money coming. He then described what occurred the night of the murder. Bean told Egan that Dorothy was a "feisty old bitch." Bean said that he just laid her down, handcuffed her behind her back, and "popped" her twice. Bean further stated that the money he would be getting in the future was from Ft. Lauderdale, Florida. Bean told Egan that he would return to Florida a week later to get a $5,000 down payment.

In Florida, Ann borrowed $5,000 from two friends. Bean flew down to Florida to get the money. Wayne told Bean that it was all the money they could give him. Bean assured him that the money would keep his partners quiet.

In early April, Chicago Police Detectives Thomas Ptak and Michael Duffin flew to Ann and Wayne's home in Florida. Ann and Wayne confessed to their participation in the crime and were arrested.

Defendant was taken into custody for questioning on April 6, 1981. Egan's sister telephoned him and told him that defendant had been arrested. Egan, Bean, and Bean's girlfriend, Debra Youngbrandt, fled Chicago in Youngbrandt's vehicle. They drove through Illinois, Iowa, and Nebraska before Egan was arrested for a minor traffic violation. Bean and Youngbrandt then returned to Chicago without Egan. Egan subsequently hitchhiked back to Chicago and returned to defendant's house.

On April 22, 1981, Egan was arrested by the Chicago police at defendant's house. On April 23, 1981, detectives arrested defendant. On April 25, 1981, detectives found Bean by a makeshift campsite in a forest preserve, and they arrested him.

At the conclusion of the evidence, the jury returned verdicts of guilty of first degree murder, conspiracy to commit first degree murder, armed robbery, and home invasion. Defendant waived a jury for sentencing. During the eligibility phase of the sentencing hearing, the State argued that defendant was eligible for the death penalty under section 9-1(b)(5) of the Criminal Code of 1961, because defendant committed the murder pursuant to a contract, agreement or understanding by which he was to receive money or anything of value in return for committing the murder. (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(b)(5).) The court found that the witness testimony and circumstantial evidence established beyond a reasonable doubt that the aggravating factor was present and defendant was eligible for the death penalty. The trial judge concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty and sentenced defendant to death.

ANALYSIS

I. Claims Relating to Defendant's Right to Confront Accusers Against Him

Defendant argues that he was denied his constitutional right to confront his accusers because the trial court erroneously (1) admitted hearsay statements made by a codefendant in regard to the murder plans under the co-conspirator exception to the hearsay rule; (2) admitted out-of-court statements by police officers that defendant's daughter had run away from home following the murder; and (3) admitted testimony by a codefendant who stated that he fled Chicago after learning from his sister that defendant was arrested. We shall examine each alleged error in turn.

Defendant objects to the testimony of Ann Walters, Daniel Egan, and Wayne Walters. Ann Walters was allowed to testify about two major conversations she had with Bean following the murder, during which Bean told her specific details concerning its commission. Similarly, Egan was allowed to testify that Bean informed him of the details of the home invasion and murder. Wayne Walters was also allowed to testify as to the conversations he had with Bean following the murder.

The general rule is that a statement of one co-conspirator is admissible against the others as an admission only if the statement was made during the course of and in furtherance of the conspiracy. ( People v. Davis (1970), 46 Ill. 2d 554, 264 N.E.2d 140.) A statement which is merely a narrative of past occurrences will not fall within the co-conspirator exception if it does not further any objective of the conspiracy. People v. Miller (1984), 128 Ill. App. 3d 574, 585, 83 Ill. Dec. 802, 470 N.E.2d 1222.

Defendant first complains that the statements admitted were not made during and in furtherance of the conspiracy. This assertion might be compelling if the conspiracy ended with Dorothy Polulach's death. However, it did not. The ultimate goal of the conspiracy was for defendant, Byron, and Egan to obtain money from Ann and Wayne Walters as payment for the murder of Dorothy Polulach. The conversations which Bean had with the Walterses and Egan following the murder were coolly calculated to further these financial interests. Bean had to convincingly and irrefutably demonstrate to the Walterses that he had succeeded in his task and he did so by relating what occurred during the murder. These recitations were inextricably intertwined with his continued requests for money. Therefore, the trial judge did not err in admitting testimony concerning these conversations.

Defendant also objects to the admittance of Egan's testimony which recounted his conversation with Bean during their return from O'Hare airport. He argues that Egan did not conspire to kill Polulach for the proceeds from her estate, and therefore Bean was merely narrating past events. In support of his argument, defendant cites People v. Parmly (1987), 117 Ill. 2d 386, 111 Ill. Dec. 576, 512 N.E.2d 1213, in which this court held that when the primary goal of the conspiracy is completed, any subsequent goal, such as concealment, could not serve as a basis to admit the statements. Parmly is inapplicable to the case at bar because the statements the court found inadmissible in that case occurred the day after the object of the conspiracy -- the robbery -- was completed. It is irrelevant whether, as defendant suggests, Egan did not have knowledge of the continuing conspiracy to extract money from the Walterses for the murder. The only way that these statements could be rendered inadmissible is if we were to agree with defendant that he was unaware of Bean's scheme with respect to the Walterses. Defendant insists that no evidence was admitted which suggested he was privy to this aspect of the conspiracy.

This assertion will not bear scrutiny. Neither defendant nor Bean testified during the jury trial, and we will never know the substance of their private conversations or mental impressions around the time of the murder. Similarly, we do not have Dorothy Polulach available to testify that it was indeed defendant and Bean who killed her. We do know, however, that Ann and Wayne Walters testified that they entered into an agreement with Bean whereby Bean agreed to kill Dorothy Polulach for a fee. Egan's testimony linked defendant to the conspiracy; he testified to the events the night of the murder. Moreover, Egan testified to his conversation with Bean and defendant on their return from O'Hare airport, in which Bean told him the details of the murder and of the monetary reward he would receive for his participation in it. Egan's testimony was not improbable; he told a credible story of a well-planned conspiracy. The trial judge was convinced that the totality of the witness testimony establishing the relationship between Bean and defendant and their cooperation in carrying out the crime revealed that defendant was well aware of the entire monetary scheme. No other reasonable conclusion could have been reached.

Defendant next attacks the admission of the officers' testimony in reference to defendant's daughter. Early in the trial, Ann Walters testified that Bean told her that one of his partners was "off the wall" because the police had been around that partner's home asking questions about his daughter, who had run away. Seeking to enhance Ann Walters' credibility and directly tie defendant to the murder, the prosecution called two police officers who also testified about the missing daughter. Officer John McCarthy testified that on February 26, 1981, he was dispatched to defendant's residence to investigate a missing-person report. He was further allowed to testify that when he arrived, defendant's wife told him that their daughter, Margaret, had run away. Detective Thomas Ptak testified that, following the arrest of the Walterses, he returned to Chicago and began searching through police missing-person reports. He testified that he found a missing-person report on Margaret Byron. Defendant asserts the trial judge erred in admitting the officers' testimony because it was hearsay.

Our review of the record indicates that defendant's challenge to the testimony of Officer McCarthy and Detective Ptak has been waived. It is well settled that both a trial objection and a written post-trial motion raising the issue are required to preserve an alleged error for review. ( People v. Enoch (1988), 122 Ill. 2d 176, 119 Ill. Dec. 265, 522 N.E.2d 1124.) Although defendant concedes that Officer McCarthy is not specifically mentioned in defendant's post-trial motion, he nonetheless argues that the motion specifically objects to the same evidence introduced through the testimony of Detective Ptak. The motion states:

"The court erred by allowing Detective Ptak to testify that, sometime after the incident, he was looking for Robert Byron. This testimony suggested that Byron had been implicated by someone. The testimony amounted to the introduction of a hearsay statement by a third-party."

Although this paragraph mentions Detective Ptak's name and "hearsay," it lacks specificity and, thus, does not preserve defendant's challenge to the ...


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