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November 2, 1995


Appeal from the Circuit Court of Stephenson County, the Hon. Lawrence A. Smith, Jr., Judge, presiding.

Rehearing Denied January 29, 1996.

The Honorable Justice Freeman delivered the opinion of the court: Justice Nickels, concurring: Justice Harrison joins in this concurrence.

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

A Stephenson County jury convicted William Keeneof armed robbery and murder and sentenced him to death. In this direct appeal (720 ILCS 5/9-1(i) (West 1992); 134 Ill. 2d R. 606), we affirm the convictions and sentence.


Evidence showed that Keene and two others, Larry Ehlers and Michael Hoover, planned to rob Bob Peters' gun shop in Freeport, Illinois. On November 11, 1992, the three left Andrea Krueger's home in Tinley Park, Illinois, travelling to Freeport in a rented vehicle. They spent the night in a motel room which Ehlers had registered for under an alias.

Early the next morning, Keene, Ehlers, and Hoover drove to the gun shop. Biding their time until Peters was alone, the three entered. Ehlers was armed with a handgun. To distract Peters, Hoover asked to see one of the knives for sale. Ehlers then shot Peters in the chest. Peters did not immediately fall, and Ehlers shot him again in the head. Peters collapsed between the sales counter and a cabinet behind it. While Peters was on the floor, incapacitated but still alive, his throat was slit.

After collecting guns, knives, and money from Peters' wallet, Keene, Ehlers, and Hoover drove back to Tinley Park.

The jury determined Keene to be eligible for death, finding that he had slit Peters' throat. The primary evidence of that was supplied by Hoover, who had agreed to testify against Ehlers and Keene in a plea bargain with the State. Hoover told the jury that, during the drive back to Tinley Park, the three had recounted what had happened in the gun shop. Hoover said that Keene admitted to having slit Peters' throat, though Hoover admitted that he had not actually seen Keene do so. Hoover said, however, that he had seen Keene behind the counter where Peters collapsed.

Other evidence corroborated Hoover's testimony. Keene had admitted to police that he was left-handed. Hoover and Ehlers were right-handed. Larry Blum, a pathologist, believed that whoever had slit Peters' throat had likely held the knife in his left hand. Blum based his opinion on how the cut looked to have been formed and the position of Peters' body.

Against those general facts, Keene raises several challenges to his convictions and sentence. Greater detail regarding the issues is set out in the discussion of them below.


Denial of Funds for a Defense Pathologist

The defense sought the appointment of an expert in pathology, intending to counter the evidence that a left-handed person had slit Peters' throat. Funds were allowed for a private investigator, but not a pathologist. Refusal of such funds, Keene argues, violated due process and equal protection guarantees, undermined the credibility of the sentencing determination and deprived him of effective assistance of counsel. Ill. Const. 1970, art. I, § 8; U.S. Const., amends. VI, VIII, XIV.

In People v. Lawson (1994), 163 Ill. 2d 187, 206 Ill. Dec. 119, 644 N.E.2d 1172, we touched on the constitutional protections relevant to indigents' requests to secure experts. As a matter of Illinois constitutional jurisprudence, the protections are triggered when the expertise sought goes "to the 'heart of the defense.'" ( Lawson, 163 Ill. 2d at 220-22, quoting People v. Watson (1966), 36 Ill. 2d 228, 234, 221 N.E.2d 645.) Of course, whether the expertise sought is of that nature will vary with the circumstances of each case. ( Watson, 36 Ill. 2d at 234.) The touchstone, however, is not with what is useful, helpful, valuable, or even important to the defense effort but what is "crucial" to it. ( People v. Glover (1971), 49 Ill. 2d 78, 82-83, 273 N.E.2d 367 (acknowledging thatprejudice is necessarily present when an issue is "crucial" to the defense).) A similar concern lies at the core of the last of the elements that the Supreme Court has identified as relevant to providing indigents "raw materials" for building a defense. Ake v. Oklahoma (1985), 470 U.S. 68, 77-82, 84 L. Ed. 2d 53, 62-65, 105 S. Ct. 1087, 1093-96.

What is crucial to the defense effort is often made plain in taking account of the inculpatory evidence offered. (Cf. Ake v. Oklahoma, 470 U.S. at 82-83, 84 L. Ed. 2d at 65-66, 105 S. Ct. at 1095-96 (holding that where a defendant's sanity at the time of the offense is to be a significant factor at trial, the defendant is entitled to funds for an expert in psychiatry).) Thus, in Lawson, where the State's "strongest piece of evidence" was shoeprints, the defendant was entitled to have an expert examine them. ( Lawson, 163 Ill. 2d at 228-29.) And, in Watson, where prosecution for delivery of a forged traveler's check turned on the instrument's counter signature, the defendant was entitled to a handwriting expert. ( Watson, 36 Ill. 2d at 234.) But, in Bell, no need was shown for a medical expert to prove the defendant's drug dependency, addiction being irrelevant to the charge of narcotics possession there. People v. Bell (1972), 53 Ill. 2d 122, 129-30, 290 N.E.2d 214.

An expert opinion that Peters' throat was not slit by someone using his left hand could have helped rebut the evidence that Keene, the sole left-handed perpetrator, was responsible. But the State's case against Keene did not turn on proof that the act could only have been done by a left-handed person. That belies the notion that a pathologist's participation was crucial to the defense.

Blum's testimony was only that it was likely that whoever had slit Peters' throat had done so holding the knife in the left hand. The cut, Blum believed, was formed by the knife passing from the right side ofPeters' throat to the left. Making such a cut would have been awkward for a person holding the knife in his right hand given where Peters lay on the floor. But Blum never excluded the possibility that the actor could have held the knife in the right hand. He simply believed it unlikely. Nor, it should be noted, did Blum's testimony do anything to dispel the idea that a right-handed person, using the weaker hand, might have inflicted the wound.

More importantly, the primary evidence against Keene was not Blum's opinion as to how Peters' throat had been slit. The core of the State's case was Hoover's testimony that Keene had admitted complicity. A defense pathologist may have rendered an opinion contrary to Blum's. But such could only indirectly refute what Hoover recounted of Keene's responsibility for slitting Peters' throat. Thus, the issue of how Peters' throat was slit was not, in that way, crucial to Keene's defense. We therefore find no error in the decision not to make funds available to Keene to retain a pathologist.

Failure to Excuse Venireperson

Having used all of its allotted peremptory challenges, the defense unsuccessfully sought to excuse for cause from the venire Delbert Folgate. Folgate, it is asserted, was predetermined to "automatically" vote for death and therefore should not have served as a juror.

As the point was not set out in Keene's post-trial motion, the State urges that we ignore it. The State argues that "plain error, which it says is the means to reach the issue's merits, is not satisfied by the circumstances of the case.

Generally, the filing of a post-trial motion is necessary to preserve issues for appellate review. The requirement is a statutory one (see 725 ILCS 5/116-1 (West 1992)), different from the additional, initial need for a timely trial objection. (See People v. Enoch (1988), 122 Ill. 2d 176, 187, 119 Ill. Dec. 265, 522 N.E.2d 1124.)

Page 10

Where a post-trial motion has been filed, the statutory requirement is interpreted to also mandate inclusion of the particular points sought to be raised on appeal. See, e.g., People v. Thomas (1984), 121 Ill. App. 3d 883, 891, 77 Ill. Dec. 346, 460 N.E.2d 402.

In capital cases, however, procedural defaults are excused for three categories of error: errors for which a timely trial objection was made and which could be asserted in a post-conviction petition (725 ILCS 5/122-1 (West 1992) (permitting only claims of "substantial denial of *** rights under the Constitution of the United States or of the State of Illinois")), challenges to the sufficiency of the evidence, and "plain" errors. ( People v. Enoch (1988), 122 Ill. 2d 176, 190, 119 Ill. Dec. 265, 522 N.E.2d 1124.) The categories are mutually exclusive. See generally M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 103.10, at 33 (6th ed. 1994) (noting that both "plain" and "reversible" error exist only with regard to a "substantial right" but that, if that term had the same meaning for both types of error, the requirement of a timely trial objection would be rendered inconsequential).

Plain error is not the reason for which the merits of Keene's argument may be considered. The purported error--participation of a juror who would vote indiscriminately to impose death--is assailable as a fourteenth-amendment-based due process claim. (See Morgan v. Illinois (1992), 504 U.S. 719, 728-29, 119 L. Ed. 2d 492, 502-03, 112 S. Ct. 2222, 2229-30.) The Post-Conviction Hearing Act accommodates such a claim. Further, there had been a contemporaneous trial objection made to Folgate's jury participation. Keene's claim here therefore need not rise to the level of plain error to excuse the procedural bar.

The contention, however, fails substantively. Folgate did initially say during voir dire that he was "for" the death penalty and would vote to impose it if Keeneshould be found guilty. But Folgate's answers to later questions show that he simply misunderstood, at first, the sentencing options. Folgate had thought that Keene was to be put to death if found guilty on one or all of the pending charges. Folgate was confused by questions indicating that he did not have to vote for death and said so. The trial judge then explained that the imposition of death was not automatic given a finding of guilt. He also explained the difference between a finding of death eligibility in the first stage of the sentencing considerations and the imposition of that penalty in the second stage. Folgate then indicated that he would not vote for death if he believed, in the end, that the ultimate penalty was inappropriate.

The record does not, therefore, reveal what is essential to Keene's claim: Folgate's promise to vote for death regardless of mitigating circumstances. There was no error in the refusal to dismiss Folgate for cause.

Exclusion from Voir Dire Examination

As part of his plea bargain, Hoover accepted a 40-year prison sentence on one count of murder. He also agreed to serve a concurrent 15-year sentence for armed robbery. But prior to testifying at trial, Hoover moved to withdraw his plea. He felt that the sentence he had agreed to was too harsh. Correspondence also indicated that Hoover feared harm in jail if he testified for the State. The State believed Hoover's cooperation was in jeopardy. It sought, and was allowed, to question Hoover outside of the jury's presence to see if he would testify as he had promised.

The trial judge excluded Keene from the courtroom during Hoover's voir dire. Although defense counsel was present, Keene contends that his exclusion violated his right to confront witnesses and his right to due process under the sixth and fourteenth amendments (U.S. Const., amends. VI, XIV). He also claims his sixthamendment right to effective assistance of counsel was violated. U.S. Const., amend. VI.

The measure for assessing whether Keene's exclusion violated due process and confrontation clause guarantees is Kentucky v. Stincer (1987), 482 U.S. 730, 96 L. Ed. 2d 631, 107 S. Ct. 2658. There, the Supreme Court considered the exclusion of the defendant from a hearing to determine the competency of two child witnesses to testify against him. The Supreme Court held that the exclusion did not violate either the sixth amendment or the fourteenth amendment.

As for the right of confrontation, the Court reasoned that the exclusion did not compromise the defendant's opportunity at trial to cross-examine the witnesses. ( Kentucky v. Stincer, 482 U.S. at 740, 96 L. Ed. 2d at 644, 107 S. Ct. at 2664-65.) The children had been subjected to both direct and cross-examination at the competency hearing. The questions asked could easily have been repeated at trial. Kentucky v. Stincer, 482 U.S. at 740, 96 L. Ed. 2d at 644, 107 S. Ct. at 2664-65.

Here, as in Stincer, defense counsel was present during Hoover's voir dire. This case differs in that the questioning of Hoover did not include cross-examination. But under the Supreme Court's confrontation clause analysis, the distinction is one of no material difference. The reason: it is the opportunity to cross-examine witnesses at trial, not earlier, that is determinative. So long as there is no interference with the usual opportunity for cross-examination at trial, no sixth amendment violation arises.

Opportunity to cross-examine Hoover at trial was in no way interfered with by excluding Keene from the voir dire. Hoover appeared and testified in open court during Keene's trial. (See Stincer, 482 U.S. at 740, 96 L. Ed. 2d at 644, 107 S. Ct. at 2664-65.) Defense counsel could have repeated any question heard earlier. (See Stincer, 482 U.S. at 741, 96 L. Ed. 2d at 644, 107 S. Ct. at 2665.) Though such opportunity is not assured in every case, cross-examination being generally limited to matters raised on direct, there was no impediment to repeating the questions here. There was no violation of Keene's sixth amendment confrontation clause right.

As for due process, the Court's analysis in Stincer turned on the nature of the hearing from which the defendant had been excluded. The Court noted that the competency hearing was a limited one which did not reach the substance of the child witnesses' trial testimony. ( Stincer, 482 U.S. at 745-46, 96 L. Ed. 2d at 647-48, 107 S. Ct. at 2667-68.) The respondent had presented no evidence to show that his presence would aid in the competency determination. ( Stincer, 482 U.S. at 747, 96 L. Ed. 2d at 648, 107 S. Ct. at 2668.) However, the Court noted in dictum that a different type of hearing--one "in which a witness is asked to discuss upcoming substantive testimony"--might bear a "substantial relationship" to the defense effort at trial. ( Stincer, 482 U.S. at 746, 96 L. Ed. 2d at 648, 107 S. Ct. at 2667.) If so, a defendant's exclusion from the earlier hearing might amount to a due process violation.

Here, the questioning of Hoover did touch upon his upcoming substantive trial testimony in addition to whether he would comply with the plea agreement. The State asked Hoover about his arrest and inquired as to when he had met Keene and Ehlers. Other questioning permitted the State to read into the record a written recitation of the facts to which Hoover had agreed to testify. The recitation included a summary of a tape-recorded statement Hoover had given to police upon his arrest. The taped statement was played. The same factual recitation, including the taped statement's contents, had been stipulated to earlier by Hoover and had been read at the announcement of Hoover's guilty plea.

The question is whether the substantive points elicited during the voir dire bore a "substantial relationship" to Keene's trial defense. (See Cates v. Cates (1993), 156 Ill. 2d 76, 80, 189 Ill. Dec. 14, 619 N.E.2d 715 (explaining that an expression in dictum of an opinion on a point argued by counsel and decided by a court, though not essential to the case at hand, should be followed where not erroneous).) Keene had certain personal knowledge of the events. Arguably, such knowledge would have put Keene in a position, had he been present for the voir dire, to assist defense counsel in evaluating Hoover's answers. Later at trial, Keene would have been in a position to point out inconsistencies in Hoover's testimony based on the earlier answers he, Keene, had ...

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