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04/17/97 PEOPLE STATE ILLINOIS v. PERRY OLINGER

April 17, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
PERRY OLINGER, APPELLANT.



The Honorable Justice Bilandic delivered the opinion of the court.

The opinion of the court was delivered by: Bilandic

The Honorable Justice BILANDIC delivered the opinion of the court:

Following a jury trial in the circuit court of Whiteside County, the defendant, Perry Olinger, was found guilty of the murders of three individuals and sentenced to death. This court affirmed defendant's convictions and death sentence on direct appeal. People v. Olinger, 112 Ill. 2d 324, 97 Ill. Dec. 772, 493 N.E.2d 579 (1986). Defendant subsequently filed a second-amended petition for post-conviction relief, which the circuit court dismissed without conducting an evidentiary hearing. He appeals to this court from the dismissal of his post-conviction petition. 134 Ill. 2d R. 651(a).

FACTS

During the morning of May 25, 1982, James Adams was found dead in his home in Rock Falls, Illinois. Later that same morning, Gordon Stevens and Debra Bushman were found dead in their home in nearby Sterling, Illinois. After a five-month investigation by various law enforcement agencies, defendant and a codefendant, William Duncan, were charged by indictment with the three homicides, and with armed robbery, armed violence and conspiracy. Defendant and Duncan were tried simultaneously before the same jury. The jury found them both guilty as charged. Defendant and Duncan each waived his right to a jury for sentencing. In separate sentencing hearings, the circuit court sentenced defendant to death and Duncan to life imprisonment.

This court ultimately reversed Duncan's convictions and remanded his case for a new trial, holding that Duncan's trial should have been severed from defendant's trial. People v. Duncan, 124 Ill. 2d 400, 125 Ill. Dec. 265, 530 N.E.2d 423 (1988), on remand from Illinois v. Duncan, 484 U.S. 806, 98 L. Ed. 2d 18, 108 S. Ct. 53 (1987), vacating People v. Duncan, 115 Ill. 2d 429, 106 Ill. Dec. 1, 505 N.E.2d 307 (1987). As noted, this court affirmed defendant's convictions and sentence on direct appeal. This case is now before us following the circuit court's dismissal of defendant's post-conviction petition.

Trial Evidence

The evidence presented at defendant's trial is detailed in this court's opinion on direct appeal. People v. Olinger, 112 Ill. 2d 324, 97 Ill. Dec. 772, 493 N.E.2d 579 (1986). The evidence showed that Tina Taber discovered the body of her boyfriend, James Adams, lying on his kitchen floor surrounded by a large pool of blood and blood spatters at approximately 10:15 a.m. on May 25, 1982. Taber also found Duncan asleep on a couch in the adjoining living room. Duncan did not respond when Taber called him, so Taber shook Duncan awake. Duncan did not appear to understand when Taber told him that Adams was hurt. Duncan was wearing the same clothes he had on the night before, and there was no blood on him. Taber and Duncan waited for the police to arrive. An autopsy revealed that Adams was the victim of a deep knife wound to his neck and five blows to the head. The weapon used to kill Adams was never recovered.

Duncan testified in his own defense that he had slept through the attack on Adams. He stated that he had drunk at least 10 beers between 5 p.m. on May 24 and 3:30 a.m. on May 25, had taken a substantial amount of cocaine and marijuana between midnight and 5:30 a.m. on May 25, had not slept for three days and had taken a sinequan capsule around 6 a.m. on May 25. He then fell asleep on the couch. The next thing he remembered was being awakened by Taber.

At approximately 11:30 a.m. on May 25, 1982, a friend of Debra Bushman's discovered the body of Gordon Stevens in the house that he shared with Bushman. The friend found the front door ajar, although it customarily was kept locked. She entered, saw Stevens' body and called police. Upon arriving at the scene, the police discovered Debra Bushman's body lying in a hallway. There were no signs of forced entry into the house. Autopsies revealed that Stevens and Bushman each died from a single gunshot wound to the head, inflicted at close range with the same .22 magnum pistol.

The State's evidence against defendant was as follows. It was undisputed that defendant knew victims Adams and Stevens. Defendant told police that his association with Adams and Stevens had been "like a triangle"; they each helped the others to sell drugs when they had some available.

With regard to the Adams homicide, the State presented evidence that Adams both used and sold drugs extensively. Early in the morning of May 24, 1982, Adams returned from a trip where he and the codefendant Duncan purchased a large quantity of drugs. Adams immediately placed several telephone calls informing potential buyers that he had cocaine for sale. Testimony of Adams' customers established that Adams sold cocaine beginning at 9 a.m. and continuing throughout the day on May 24. They reported seeing defendant at Adams' house, as well as several other people.

Defendant told police that he went to Adams' house three different times on May 24-specifically, from 10 to 11 a.m.; between 1 to 2 p.m.; and from 11:30 p.m. on May 24 until about 4:30 a.m. on May 25. Defendant stated that, during his second visit, he obtained some cocaine and used it. During his third visit, defendant obtained more cocaine from Adams on credit, giving Adams a high-powered rifle as collateral.

Other testimony established that, at about 1 a.m. in the morning of May 25, Adams left his house and went to Randolph Stralow's house, taking his cocaine and money with him. Duncan, who was staying with Adams, remained at Adams' house, as did defendant and his girlfriend, Rhonda Odquist. Defendant and Duncan consumed cocaine there for several hours. During this time, Duncan called Adams at Stralow's house four times, asking him when he would return. According to Duncan and Odquist, defendant and Odquist left Adams' house at around 5 a.m. Stralow testified that Adams left Stralow's home with his cocaine and money at about 7 a.m. on May 25. An acquaintance of Adams testified that she saw Adams' van turning into his driveway at 7:15 a.m. on May 25. As stated, Adams' body was discovered at 10:15 a.m. on May 25. Defendant's palmprint was lifted from the stove in the kitchen where Adams' body was found.

The State also presented evidence that defendant, who was unemployed, had a large amount of cash after the murders. Patty Doyle testified that she saw defendant with a rolled-up "wad" of bills on the afternoon of May 25. She did not know how much money was there. A gas station attendant testified that defendant paid his bill with a single $100 bill one or two days after the murders. On June 3, four $100 bills were recovered from beneath the floor mat in defendant's pick-up truck.

Randolph Stralow testified that Adams left Stralow's home with his cocaine and $1,800 at about 7 a.m. Stralow stated that he knew the amount of money Adams had because he had watched him count it out in stacks of hundreds; Adams mostly had $20 bills, but he "could have" had some $10 and $100 bills. An investigation of the Adams crime scene on the morning of May 25 revealed no money or wallet on Adams or in his house. Tina Taber testified that, three or four days after finding Adams' body, she found Adams' cocaine hidden in his garage. Patty Doyle testified that when she saw defendant one week after the murders, defendant told her that "Jim [Adams] said all the coke was left at [Stralow's]."

Defendant's mother testified for the defense that she co-signed a bank loan for defendant in the amount of $3,431, which proceeds he received in early May 1982.

With regard to the murders of Stevens and Bushman, the State presented evidence that defendant was seen talking to Stevens in a bar during the early evening hours of May 24, 1982. Dale Ulve testified that defendant and Stevens invited Ulve to stop by Stevens' house later that night, telling him that they would have cocaine available for him to use.

The .22 magnum pistol used to kill Stevens and Bushman was never recovered; however, the State linked this weapon to the burglary of Dennis Burris' farmhouse on May 22, 1982. Burris testified that several firearms, including a .22 magnum pistol, had been stolen from his farmhouse. Burris further related that, prior to the burglary, he had shot and killed a dog with the .22 magnum pistol. The dog's body was exhumed and, according to the State's firearms expert, the bullets found in the dog were fired from the same gun as the bullets found in Stevens and Bushman.

Three men admitted their participation in the Burris burglary-defendant, Darrell Onken and Edward Stalder. Defendant's admission to his participation in the burglary was presented to the jury through the testimony of the law enforcement officials to whom he gave his statement.

Darrell Onken testified for the State regarding the Burris burglary. Onken stated that, during the afternoon of May 22, he was drinking at a local tavern. Defendant introduced him to "Mike," whose real name, Onken later learned, was Edward Stalder. Defendant mentioned that he had no money. The three men decided to commit a burglary. Ultimately, they drove to the Burris residence, where Onken acted as a lookout while Stalder and defendant went into the house. Stalder and defendant returned with a burlap sack. Onken did not see what was in the sack, did not receive any proceeds from the burglary and did not know what, if anything, the other two participants received.

Defense witnesses testified regarding activity that they observed at the Stevens/Bushman residence on the morning of May 25. A neighbor who lived across the street from Stevens and Bushman testified that he saw a man drive up to the Stevens house and walk to the door at approximately 9:15 a.m. He watched the man enter the house, but did not notice him leave. This man had dark hair and was driving a fairly new, light-colored car. Another neighbor who lived across the street related that he saw a car pull into the driveway of the Stevens house at about 9:30 a.m. He saw a man get out of the car and run toward the house. This man had light-brown, shoulder-length hair and the car was dark green. The neighbors' descriptions do not fit defendant, who had red hair and drove a pick-up truck.

The most significant evidence offered by the State to connect defendant to the three murders was the testimony of Edward Stalder. Because Stalder's testimony is central to the first claim addressed on appeal, we present that testimony in detail. Stalder testified that, in April of 1982, he left his home in another state and moved into his friend William Mooney's house in Whiteside County, Illinois. A man named Kevin Anderson and Mooney's wife were also living there at the time.

Stalder met defendant for the first time on May 15, when defendant visited the Mooney house. Stalder had some cocaine in his possession, which he shared with defendant. Stalder explained that he generally consumed his cocaine by shooting it up with a needle. Later that night, Stalder and defendant discovered that they were out of needles. In a search for needles, Stalder and defendant drove to Adams' house in Rock Falls. They were directed to the Stevens/Bushman residence in Sterling. There, Stalder met Stevens and Bushman for the first time, and then all four shared Stalder's cocaine. Defendant ultimately dropped Stalder off at the Mooney house the next evening, May 16.

Stalder did not see defendant again until he met him in a tavern in Morrison, Illinois, during the afternoon of May 22. There, Stalder was introduced to Onken. Stalder, defendant and Onken talked about "everybody being short on money and figuring out some way to get some." According to Stalder, while he and defendant were alone, defendant asked Stalder to join him in "taking over control of the drug traffic in the area." Defendant suggested that he and Stalder steal drugs from "Jim Adams and a Bill" and "make sure there wasn't [ sic ] any witnesses left." Stalder understood "Bill" to be William Duncan. Stalder stated that he declined this offer.

Stalder, defendant and Onken proceeded to the Burris farmhouse. Stalder and defendant burglarized the farmhouse while Onken stood watch outside. Stalder stated that they stole several firearms including a .22 magnum pistol, a .38-caliber pistol and two black-powder pistols. Stalder claimed that he took the .38 and the two black-powder pistols, but that defendant kept the .22 magnum. As stated above, this .22 magnum pistol was later determined to be the weapon used to kill Stevens and Bushman.

Stalder further testified that, later during the night, after Onken was gone, defendant again tried to convince him to "go in with him on taking over the drug traffic." Stalder again told defendant that he was not interested.

Stalder next related that after defendant dropped him off at the Mooney house on the evening of May 23, he remained there until May 25. Stalder stated that he heard about the murders and, two or three days later, he moved into Bob Edmunds' home in Morrison. He and Edmunds traveled to Iowa, where Stalder gave the two black-powder pistols to a person with instructions to sell them or dispose of them. They then returned to Morrison. On June 8 or 9, 1982, Stalder and Edmunds again traveled to Iowa along with Bill Mooney and others. The group was pulled over outside of Newton, Iowa, for a traffic offense. Stalder was arrested for possession of a weapon. Stalder testified that he was carrying "a .38" and "a .45 with filed serial numbers" at the time of his arrest.

Stalder acknowledged that he had been convicted of a federal weapons charge and was presently in federal custody. Stalder also stated that he was given immunity for burglarizing the Burris residence in exchange for his testimony.

On cross-examination, Stalder was asked if he had ever previously been convicted of any crimes. Stalder testified that he had been convicted of burglary and drug offenses in Florida and of a drug offense in Nebraska. He also stated that he had been charged in Iowa for weapons and drug offenses, and that the charges had been dropped. Stalder further stated that he had been charged with a parole violation in Florida, which had been dropped because he was doing five years in federal custody.

The jury found both defendant and Duncan guilty of the three murders and related charges. Separate sentencing proceedings commenced. Defendant waived his right to a jury for sentencing. The circuit court determined that defendant was eligible for the death penalty and, after considering evidence in aggravation and mitigation, sentenced him to death.

Post-Conviction Proceedings

Defendant's second-amended post-conviction petition, with accompanying exhibits, was filed on August 19, 1994. The State filed a motion to dismiss the petition. After briefing and argument, the circuit court granted the State's motion to dismiss with respect to all claims of the post-conviction petition, except one. The post-conviction petition alleged that a juror named Myrna Brown had written a letter to a local newspaper several years after defendant's conviction in which she espoused the view that criminal defendants should be presumed guilty until they prove themselves innocent. The circuit court allowed a discovery deposition to be taken of juror Brown to determine whether, at the time of defendant's trial, she followed her oath as a juror. Following this deposition, the circuit court ruled that juror Brown had done so. The court therefore dismissed this last claim of the post-conviction petition.

Defendant also filed several discovery motions in the circuit court during the course of post-conviction proceedings. The circuit court denied all these requests.

Defendant's post-conviction petition identifies additional evidence, which was not presented at his trial. This evidence is discussed in the analysis portion of the opinion.

ANALYSIS

We initially note the proper scope of our review. Defendant's petition for post-conviction relief was filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 1994)). To obtain relief under the Act's provisions, a defendant must establish that a substantial deprivation of his constitutional rights occurred in his trial or sentencing hearing. 725 ILCS 5/122-1 (West 1994).

A defendant is not entitled to an evidentiary hearing on a post-conviction petition as a matter of right; rather, an evidentiary hearing is required only when the allegations of the petition, supported by the record or accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Del Vecchio, 129 Ill. 2d 265, 279, 135 Ill. Dec. 816, 544 N.E.2d 312 (1989). For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts in the petition and any accompanying affidavits are taken as true. People v. Brisbon, 164 Ill. 2d 236, 245, 207 Ill. Dec. 442, 647 N.E.2d 935 (1995).

With some very narrow exceptions, the judgment of the reviewing court on a previous appeal is res judicata as to all issues actually decided, and any issue that could have been presented, but was not, is waived. People v. Ruiz, 132 Ill. 2d 1, 9, 138 Ill. Dec. 201, 547 N.E.2d 170 (1989).

I. State's Knowing Use of Perjured Testimony and Related Claim

Defendant contends that his constitutional right to due process of law was violated at his jury trial because the State elicited false testimony from Edward Stalder regarding promises made to him in return for his testimony against defendant. Specifically, defendant claims that Stalder was permitted to testify that he was given immunity only from prosecution for the Burris burglary in exchange for his testimony, when in fact Stalder obtained a multijurisdictional deal, which included the dismissal of a number of other charges pending against him. Defendant attached items to his post-conviction petition which, he argues, demonstrate that Stalder testified falsely regarding the extent of the consideration he received in exchange for his testimony.

The first item attached to defendant's post-conviction petition is the signed affidavit of Nick Critelli, an attorney who represented Stalder. This affidavit, dated August 14, 1994, states in relevant part:

"I am Nick Critelli, an attorney at law having been admitted to practice in the State of Iowa and the State of New York. ***

On or about the 8th day of July, 1982 I was appointed by the United States District Court for the Southern District of Iowa to represent one Edward Stalder, an individual who was to plead to an indictment charging a violation of 18 USC 922(k) and 924(a) and 18 USC app. 1202(a)(1) before that Court.

During the representation, I and my associate Mr. James Sherburne were informed by the United States District Attorney assigned to the case, Mr. Joe Beck that Mr. Stalder was a suspect in a burglary in Illinois and had information that would assist the Illinois authorities in a homicide investigation. Mr. Stalder had previously talked with the Illinois authorities but had not at that point reached an agreement with them regarding his testimony. Mr. Beck and I discussed the matter and reached an understanding that if Mr. Stalder cooperated with the Illinois authorities, he would receive favorable treatment in the pending federal case. I do not recall how we received the name of the Illinois State's Attorney, Mr. Gary Spencer, if I called Mr. Spencer first or if he called us, however we did make contact and began negotiations. Our plan was that in exchange for testimony in the homicide case, Mr. Stalder would receive absolute immunity on the Illinois burglary from Mr. Spencer, Mr. Beck would accept a plea to one count of the federal indictment and dismiss the other, and Florida and Nebraska would dismiss their pending actions against Mr. Stalder. Because of the seriousness of the homicide case and the materiality of Mr. Stalder's anticipated testimony, the various prosecuting authorities were understandably co-operative. Florida and Nebraska were not interested in continuing their matters as long as Mr. Stalder was doing federal time on the federal charge. We were able to work out a global settlement of all pending charges against Mr. Stalder. " (Emphasis added.)

The affidavit further relates that the State's Attorney of Whiteside County traveled to Des Moines, Iowa, and on July 16, 1982, he signed a written agreement with Stalder, giving Stalder immunity for the Burris burglary in exchange for his cooperation. The affidavit also states that on July 29, 1982, Stalder entered into a plea agreement with the federal government in which he pled guilty to one count of the federal indictment against him and in exchange the second count of the indictment was dismissed. Subsequently, authorities in Florida and Nebraska dismissed their charges against Stalder as well.

A second item attached to defendant's post-conviction petition is an investigative report kept by the Illinois Department of Law Enforcement. According to this report, the State's investigation into the homicides was ongoing when Stalder was arrested in Newton, Iowa, in early June of 1982. The report indicates that one of the weapons that had been stolen from the Burris farmhouse was found in Stalder's possession. At that time, a separate weapon taken in the Burris burglary was suspected of being used to murder Stevens and Bushman. The report states that, on June 27, 1982, Illinois authorities traveled to Iowa and met with Stalder and his attorney at the police station, where they interviewed Stalder concerning the Burris burglary and the ...


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