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April 18, 1996


The Honorable Justice McMORROW delivered the opinion of the court: Justice Miller, specially concurring: Chief Justice Bilandic joins in this special concurrence.

The opinion of the court was delivered by: Mcmorrow

The Honorable Justice McMORROW delivered the opinion of the court:

Following a jury trial, defendant was convicted of murder and armed robbery and was sentenced to death. His convictions and sentence were affirmed on direct review ( People v. Burrows, 148 Ill. 2d 196, 170 Ill. Dec. 317, 592 N.E.2d 997 (1992)) and the United States Supreme Court denied his petition for a writ of certiorari ( Burrows v. Illinois, 506 U.S. 1055, 122 L. Ed. 2d 137, 113 S. Ct. 984 (1993)). Defendant then sought post-conviction relief (725 ILCS 5/122--1 et seq. (West 1992)) and post-judgment relief (735 ILCS 5/2--1401 (West 1992)). After a hearing, the trial court granted the defendant's request for a new trial, and the State appeals. Upon review, we are asked to consider inter alia whether the defendant should be awarded a new trial, based on (1) evidence that two prime witnesses against the defendant (Gayle Potter and Ralph Frye) have admitted that their trial testimony was perjured, and one of those witnesses (Gayle Potter) has admitted that she alone killed the victim; and (2) evidence that a witness (Jana West), who allegedly could not be located for defendant's trial, would testify that Potter told her that Potter had shot and killed a man on the date that the victim was murdered.


Defendant was convicted for his participation in the armed robbery and murder of William Dulin that occurred at the victim's home in Sheldon, Illinois, in early November 1988. *fn1 Forensic evidence established that the victim, who was in his late eighties, had been shot in the head at close range and that money and clothing had been taken from his person. There were no signs of forced entry into the residence and no fingerprints to link defendant or any other individual to the crimes. Blood found at the scene was identified as that of Gayle Potter, who was indicted with the defendant for the crimes committed upon Dulin. Another individual, Ralph Frye, was also indicted for his involvement in the incident.

Both Potter and Frye testified against defendant at his trial. Their testimony is set out in greater detail in the earlier appeal in which defendant's convictions and sentence were affirmed. Burrows, 148 Ill. 2d 196, 170 Ill. Dec. 317, 592 N.E.2d 997. Briefly restated, Potter testified that she was a drug dealer and that Steve Poll was her drug supplier. Potter stated that in November 1988 she learned that Poll believed that she owed him money from a cocaine deal. Potter went to see Poll at the gas station where he worked on November 8, 1988. Defendant, who was Poll's "enforce" and would collect money for Poll, was also there. According to Potter, Poll suggested that she borrow the money from a "rich, old farmer," referring to Dulin. She testified that Poll told defendant to "persuade" her to obtain the money and that defendant hit her on the head. Potter agreed to meet defendant and Frye later that evening at a parking lot in Watseka. Potter knew Dulin because her mother had provided housekeeping services for Dulin, and Potter had been to the Dulin residence and borrowed money from Dulin in the past.

Potter further testified at defendant's trial that she drove the automobile of the father of a friend, Chuck Gullion, to meet the defendant and Frye. Once she had arrived at the parking lot, she found defendant and Frye, who were waiting in a truck. They followed her to Dulin's home. She stated that when she arrived at Dulin's house, she went to the front door and knocked; Dulin opened the door and let her in. Defendant and Frye also entered although they had not been invited in by Dulin. Once in the residence, Potter asked Dulin to loan her $3,000. When he refused, defendant brandished a gun and told Dulin to write a check. Dulin refused, the two men struggled and defendant shot Dulin in the head. Potter testified that she became hysterical and that defendant hit her on the side of the head, causing her to bleed. She was forced outside and into the truck with Frye while defendant returned to the residence to remove fingerprints. When defendant emerged, he was carrying papers, clothing, a gun, and a paper sack. Defendant and Frye then left in their truck, while Potter departed in the vehicle she had used to arrive there.

Potter stated that the following day, defendant and Poll came to her home, gave her a check signed by Dulin in the amount of $4,050 and told her to have the check cashed. She went with her friend, Gullion, a day later to a nearby bank in an effort to cash the check. When Gullion attempted to cash the check, the bank clerk refused to honor it. Gullion returned to the car and gave the check to Potter, who burned the check. Shortly thereafter, she and Gullion were arrested by police authorities.

Potter admitted that the murder weapon was hers. She explained that it had been stolen from her trailer shortly before the Dulin murder and that she believed the defendant had taken it from her. She stated that she did not realize until after the incident that the defendant had put the weapon back in the car she was driving, and that she later told her boyfriend, Rick Gillespie, to hide the gun in the woods. The weapon was recovered by authorities in a wooded area near Potter's trailer a few days after the murder.

Another of defendant's codefendants, Ralph Frye, also testified against defendant at trial. His testimony was substantially similar to that provided by Potter, in that he recounted Potter's encounter with defendant at the gas station where Poll worked; the trio's drive later that evening from a parking lot in Watseka to the home of Dulin in Sheldon. Potter's efforts to obtain $3,000 from Dulin; and defendant's shooting of the victim when the latter refused to give Potter the funds she desired. Frye also corroborated Potter's account that defendant hit her while in the Dulin residence when she became hysterical over the shooting and that defendant removed money and articles of clothing from the Dulin home.

Both Frye and Potter acknowledged during their trial testimony that they had given prior, inconsistent statements to authorities and others regarding what had transpired during the incident. Potter admitted that she had initially lied and told police that she did not know anything about the Dulin murder. Later she changed certain portions of her story regarding how and when she had arrived at the Dulin residence.

Frye similarly admitted that his statements to authorities were not wholly consistent with his trial testimony. He also acknowledged that he had given a tape-recorded statement to defendant's attorneys in which Frye denied being present for the Dulin murder. He explained in the tape-recorded statement that he had lied to the police about his involvement in the incident because he was confused and the officers had threatened him. However, at defendant's trial, Frye recanted his exculpatory statements and gave testimony to the effect that he had been present when defendant shot Dulin. Both Potter and Frye acknowledged that they had adjacent cells while in prison and that they spoke to each other on a daily basis through a food slot.

Rick Troyer, Potter's step-cousin, also testified at defendant's trial. He stated that on the night of the incident, Potter came to his apartment in Watseka accompanied by Gillespie and Gullion. Gullion gave Potter some keys and she left the apartment, returning at approximately midnight. When Potter returned, she had blood in her hair. She was carrying a pair of pants, a shirt, and a coat, According to Troyer, Potter placed some money on a table and said that she "thought there would be more than two hundred fifty dollars there," explaining that she "had stripped the body to protect Shaun." Troyer recounted that Potter also said that she had been "bushwhacked" during a drug deal, thus accounting for her head wound. Troyer testified that he heard Potter tell Gullion that there was a gun in the car and that Gullion left the apartment briefly and returned with several gunshot shells, some of which were spent, and some of which were not. Troyer stated that shortly thereafter, Potter left the apartment with Gillespie and Gullion.

Defendant presented the defense of alibi at his trial. Witnesses testified in his behalf in an effort to demonstrate that neither he nor Frye was at the Dulin residence on the night of the murder. The jury found the defendant guilty of Dulin's murder and armed robbery and he was sentenced to death.

Defendant's subsequent motions for post-judgment and post-conviction relief relied inter alia upon recantations provided by both Potter and Frye. In testimony given at the trial court's hearing with respect to defendant's post-judgment and post-conviction claims, Potter acknowledged that she had shot and killed Dulin on the night of the incident. She testified that she was alone at the time and that neither defendant nor Frye had accompanied her to Dulin's residence. Potter explained that she had gone to ask Dulin to loan her money and that he refused when she admitted that she needed the funds to repay a drug debt. Potter stated that Dulin started to push her toward the doorway and that she became afraid, removed her gun from her bag, and fired three shots into the ceiling. According to Potter, Dulin reached for a gun hanging on the wall that "looked like a German Lueger" and she became frightened. Dulin hit her in the head with the butt of the gun and she shot him once in the shoulder and then dropped her gun. Both she and Dulin reached down to retrieve the weapon, but she picked it up first. As she was raising the revolver, it discharged, hitting Dulin in the head and killing him. Potter recounted that she went over to Dulin's desk and removed checks from the desk drawer. Potter testified that she did not remove any money or clothing from Dulin's person while she was at the residence. After retrieving the checks, she fled the home.

Potter reiterated that neither defendant nor Frye was ever with her, and that she alone had shot Dulin. She explained that everything she had previously told authorities, and all of her earlier in-court testimony at the trials of the defendant, Frye, and herself, were all fabrication. Potter explained that she was now telling the truth about the incident because it was part of her drug rehabilitation program to be accountable to those whom she had harmed from her conduct in the past. Potter stated that she did not want to see defendant, who was innocent, punished for crimes he did not commit.

Frye also testified at the trial court's evidentiary hearing with respect to defendant's post-judgment and post-conviction claims. He stated in relevant part that he had not accompanied defendant or Potter to the Dulin residence on the night of the murder and that he had no involvement in the incident. Frye explained that he had given the authorities inculpatory statements because he was sick, under medication, and frightened when he was questioned by police. He testified that his explanation of the incident derived from information that was given to him by the officers who interrogated him after he was arrested and that he had no actual knowledge of what had transpired when Dulin was shot and robbed. Frye further stated that his exculpatory statement to defendant's attorney had been truthful, but ...

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