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09/25/97 PEOPLE STATE ILLINOIS v. MARTIN M. WOOLLEY

September 25, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
MARTIN M. WOOLLEY, 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:

The defendant, Martin M. Woolley, was charged by indictment in Henry County with six counts of murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 1994)), one count of armed violence (720 ILCS 5/33A-2 (West 1994)), one count of armed robbery (720 ILCS 5/18-2(a) (West 1994)), one count of robbery (720 ILCS 5/18-1(a) (West 1994)), and one count of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 1994)), arising out of the February 20, 1995, shooting deaths of Rane Baldwin and Dianna Turley in Kewanee, Illinois. After a jury trial, the defendant was found guilty on all counts. The circuit court entered judgment on two counts of intentional murder, one count of armed violence, one count of armed robbery, and one count of unlawful possession of a weapon by a felon. A capital sentencing hearing was held before the same jury. The jury found the defendant eligible for the death penalty on the basis of three statutory aggravating factors. 720 ILCS 5/9-1(b)(3), (b)(6), (b)(11) (West 1995). The jury further found that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the circuit court sentenced the defendant to death. The circuit court also sentenced the defendant to concurrent terms of 30 years' imprisonment on the armed violence conviction, 30 years' imprisonment on the armed robbery conviction, and 5 years' imprisonment on the unlawful possession of a weapon by a felon conviction. The defendant's death sentence has been stayed pending his direct appeal to this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rs. 603, 609(a).

For the reasons that follow, we affirm the defendant's convictions for murder, armed robbery and unlawful possession of a weapon by a felon. We vacate the defendant's conviction and sentence for armed violence. We also vacate the defendant's death sentence and remand for a new capital sentencing hearing.

FACTS

At approximately 10 p.m. on February 20, 1995, the bodies of Rane Baldwin and Dianna "Dee" Turley were found in Phylly's Cue and Brew tavern (Phylly's) in Kewanee, Illinois. Peter Dolieslager, Baldwin's boyfriend, testified that he called the tavern at approximately 9:45 p.m. and talked to Baldwin, who was tending bar. Dolieslager arrived at the tavern shortly thereafter and discovered the bodies of Baldwin and Turley lying on the floor.

Autopsies revealed that Turley had been shot once in the forehead from a distance of less than three to four feet. The bullet entered Turley's head at a slightly upward angle. Baldwin had been shot three times in the head. The pathologist who conducted the autopsies could not determine the order in which the three bullets struck Baldwin. One bullet struck her right cheek and would not have been fatal. A second bullet entered her head and lodged in her spine, and would have caused instant paralysis but not instant death. A third bullet entered the right side of her head and would have killed her instantly. None of the bullets which struck Baldwin were fired at close range.

The State presented testimony from several witnesses that both the defendant and his wife, Marcia Woolley, were frequent patrons of Phylly's and that they were present at the tavern throughout the day of February 20, 1995. According to these witnesses, the defendant and his wife arrived at the tavern at approximately 1 p.m. During the afternoon, they drank beer and talked with other patrons. The Woolleys left the tavern at approximately 5 or 5:30 p.m. to go home and prepare dinner for Marcia's children. They returned to the tavern around 6 p.m. and spent the evening drinking beer, talking, and playing pool with Jeff Ince and Debbie Brose. Ince was a bartender at Phylly's and had been working until 7 p.m., when he was relieved by Baldwin.

Brose testified that while the group was playing pool, sometime between 8 and 8:30 p.m., she saw the imprint of a gun under the defendant's shirt stuck in the back of his pants. Neither Ince nor Brose saw the defendant move a gun from his pants to his jacket pocket while they were at the tavern. Dee Turley and Kathy Kouris arrived at Phylly's at approximately 8:30 p.m. Ince and Brose left the tavern at 9:15 p.m. Remaining in the tavern at that time were the defendant, his wife, Turley, Baldwin, Kouris and Rick Van Waes.

Ince testified that, on the evening of the murders, the defendant made a comment to him that he was the type of person who "could walk into McDonalds and just open up on everybody." Dolieslager testified that he had a conversation with the defendant in Phylly's on February 18, 1995, in which the defendant commented that it would be easy to commit a robbery if you killed the witnesses. Dolieslager admitted that he never mentioned this statement to the police when he was questioned after the murders. Dolieslager also testified that on February 18, 1995, while he and the defendant were in Phylly's, the defendant and Baldwin discovered that they had attended school together and they engaged in a lengthy conversation. The defendant's wife, who was also present, became jealous and was "visibly upset" that the defendant and Baldwin were talking.

On February 21, 1995, the defendant and his wife voluntarily went to the Kewanee police station for questioning. The defendant told investigators that he and Marcia had been at Phylly's the day before but had left at 9:25 p.m. He denied any knowledge of the murders. Beginning at approximately 7 p.m., the defendant was interrogated by Kewanee Police Detective Joseph Cervantez and Illinois State Police Lieutenant Richard Shannahan. During this interrogation, the officers left the room briefly and, upon returning, informed the defendant that they "had him." According to the officers, the defendant stated that he wanted an attorney and then said, "I killed them, yeah, I killed them." The defendant subsequently withdrew his request for an attorney and gave a statement regarding the murders. More detailed testimony concerning this sequence of events was presented during the hearing on the defendant's motion to suppress his confession. That testimony is discussed in conjunction with our analysis of the suppression issue.

The defendant filed a motion to suppress his confession, which was denied, and the confession was admitted into evidence. The defendant stated therein that he and Marcia were at Phylly's during both the afternoon and the evening of February 20, 1995. They arrived for the evening at around 6:30 or 7 p.m. At that time, Rane Baldwin was tending bar and Jeff Ince and Debbie Brose were present in the bar. The defendant and Marcia were both drinking beer and playing pool with Ince and Brose. Dee Turley and Kathy Kouris arrived at Phylly's at around 8:30 or 9 p.m. Ince, Brose and Kouris left at approximately 9:30 p.m. At this time, Turley, Marcia, and the defendant were sitting, in that order, on bar stools along the bar. The defendant stated that he decided to rob the tavern. He had been carrying a 9-millimeter gun in the back of his pants. He pulled out the gun and shot Baldwin two or three times in the head, causing her to fall to the ground. He then shot Turley once in the head, causing her to fall. Turley was standing when the defendant shot her and Marcia was sitting on a bar stool between the defendant and Turley. The defendant related that he looked out the front window of the tavern and then walked around behind the bar and took the money out of the cash register and two money bags from underneath the register. At that time, Baldwin moved or made a noise and the defendant shot her again in the head. The defendant then grabbed Marcia and dragged her out of the bar. They got into a pickup truck they had borrowed from a friend and drove home. The defendant took the cash out of the money bags and burned the bags and their remaining contents in a wood stove. He hid the cash in a hole in the wall of a bedroom closet and put the gun in a freezer located in his friend Carl Girkin's garage. The next day, the defendant asked Girkin to throw the gun into a river. The defendant stated that Marcia did not handle the gun that evening and that she had no prior knowledge of what he was going to do.

Lieutenant Shannahan testified that the physical evidence at the crime scene was consistent with the version of events given in the defendant's statement. On cross-examination, Lieutenant Shannahan testified that he did not perform any tests on the defendant's hands to determine if he had recently fired a gun. Lieutenant Shannahan stated that the gunshot residue test is antiquated and unreliable.

Carl Girkin was called by the State and testified that on February 21, 1995, the defendant told him he had put a gun in the freezer in Girkin's garage. The defendant asked Girkin to dispose of the gun by throwing it into the river. Girkin, however, kept the gun because there was nothing wrong with it and he enjoys firearms. Girkin took the gun out of the freezer and put it in a dresser drawer at his girlfriend's house. Kewanee police later recovered the gun from that location. Forensic testing revealed that bullets and spent shell casings recovered from the murder scene were fired from this gun.

Illinois State Police officers recovered $287.25 in cash from a hole in the wall of a bedroom closet in the Woolleys' house. Fingerprints lifted from the currency matched those of the defendant.

Illinois State Police crime scene technician Mike Ogryzek examined the murder scene and formulated a reconstruction of the crimes. Turley's body was found lying on the floor with her ankle resting on the bottom of a bar stool. Ogryzek opined that Turley was shot at close range, from between three to six feet away, and that she was sitting on a bar stool when she was shot. Baldwin's body was located on the floor behind the bar. Ogryzek testified that the bullet to Baldwin's cheek would have caused her body to spin and the bullet that lodged in her spine would have caused immediate paralysis and caused her to fall to the floor. In his opinion, the shooter of these two shots was located in the southwest corner of the bar and could have been coming out of the men's bathroom. Ogryzek further testified that, at the time the third bullet entered Baldwin's head, her head was in contact with some hard surface, such as the floor. In his opinion, this shot was fired while Baldwin was lying on the floor by someone standing over her. Ogryzek testified that the shooter of this shot could not have been standing on a bar stool on the other side of the bar because of the distance across the bar and the angle of the shot.

The State also called Donald Tomsha. In March of 1995, Tomsha was incarcerated with the defendant at the Henry County jail while the defendant was awaiting trial. Tomsha had been convicted of burglary in 1993 and possession of a controlled substance in 1994. When he met the defendant in jail, Tomsha had been charged with burglarizing three businesses. Tomsha subsequently pled guilty to those burglaries and received a sentence of six months in jail and probation.

Tomsha testified that the defendant confessed to him that he had shot and killed the victims. The defendant told Tomsha that he shot the bartender as she was turning up the volume on the television at the defendant's request. The defendant then handed the gun to his wife to shoot Turley, but Marcia "froze" and the defendant took the gun back and shot Turley himself. The defendant took money from the cash register, then shot the bartender again because she was still alive. The defendant told Tomsha he gave the gun to a friend who was supposed to throw it into a river. Tomsha stated that the defendant wrote all of this down on a legal pad and signed it in Tomsha's presence. According to Tomsha, the defendant also wrote several other statements, including one containing an exculpatory version of the events at Phylly's. Tomsha took the documents the defendant had written and turned them over to the authorities. These statements were admitted into evidence at trial.

Tomsha stated that he was not testifying in exchange for favorable treatment and he did not expect any benefit as a result of his testimony. Tomsha agreed, however, that it was "possible" that his providing this information about the defendant to the authorities helped him to avoid prison on his own charges.

Tomsha and the defendant both submitted handwriting samples. FBI Document Examiner John Sardone, a handwriting expert, testified that the defendant's samples were written in a deliberate manner and did not contain his naturally occurring handwriting. Because of the deliberate nature of the defendant's samples, Sardone could not positively identify the defendant as the author of the written statements turned over to the authorities by Tomsha. Sardone was able to conclude that all of these documents were written by the same person, and that they were not written by Tomsha. Sardone also concluded that the signatures on the documents matched the defendant's signature in the known samples.

The State introduced the defendant's prior conviction for burglary and then rested its case.

The defendant testified on his own behalf. He stated that he and Marcia went to Phylly's at approximately 1 or 1:30 p.m. on February 20, 1995. The defendant had stuck his gun in the back of his pants because they planned on doing some target shooting that afternoon. Both he and Marcia were drinking beer. They left the bar at around 5 p.m. to prepare dinner for Marcia's children and returned to the bar afterwards. He and Marcia played pool and continued to drink beer. Dee Turley and Kathy Kouris arrived at the bar at around 8 or 8:30 p.m. Marcia was very jealous of other women having contact with the defendant and had been carrying a grudge against Turley for a long time. Marcia, Turley, and Kouris each drank shots of alcohol, with Marcia consuming two or three shots. When Kouris left the bar, Marcia and Turley were bickering.

At around 10 p.m., the defendant went to the men's bathroom to smoke some "one-hitters" of marijuana. At this time, his gun was in the pocket of his coat which was draped over the back of a bar stool. While he was in the bathroom, he first heard Baldwin raise her voice about something and then heard two or three gunshots. When he came out of the bathroom, he saw Marcia with one foot up on a bar stool leaning over the bar with the gun. Marcia then fired another shot. Turley was already lying on the floor. Marcia was sitting on her bar stool in a daze and the defendant took the gun from her. The defendant looked out the door to see if anyone heard the shots. He then walked around the bar and saw Baldwin lying on the floor behind the bar. The defendant decided to try to "cover things up" by making it look like a robbery. He took the money out of the register and the money bags from underneath the register. He then grabbed Marcia and they left the bar. They went home, where the defendant proceeded to hide the money and burn the money bags. He later put the gun in his friend's garage.

The defendant testified that he and Marcia discussed what their "story" would be if questioned by the police. The defendant told Marcia that, "if it came down to it," she should tell the police that he committed the murders. Sometime the next day, the defendant told Carl Girkin to dispose of the gun. The defendant ultimately gave a statement to police confessing to the crimes because he was trying to prevent Marcia from being taken away from her children. He was not thinking about the severity of the punishment at that time.

The defendant testified that he became acquainted with Donald Tomsha in jail. Tomsha was very nervous about the prospect of going to prison. The defendant stated that he never spoke to Tomsha about his case. The defendant did, however, have all the documents regarding his case, including police reports, interviews, and discovery, in his cell, where any other inmate could look at them. The defendant did not write any of the documents Tomsha attributed to him.

The defendant denied making a statement to Pete Dolieslager about "killing all the witnesses" in order to get away with a robbery. He also denied ever making the comment about "opening up in a McDonalds" attributed to him by Jeff Ince. When he and Ince had this conversation, it was a conversation about crime generally and the defendant simply commented on how that sort of thing is happening now. The defendant also denied ever making comments to Dave Aldred to the effect that the Kewanee police were a "joke" and it would be easy to commit a crime in Kewanee. The defendant further testified that Marcia had previously worked at Phylly's and that, as a result, he knew that the largest amount of cash was present at the bar on Thursday nights, not on Monday nights, which was the night the murders occurred. The defendant denied that he intended to rob Phylly's or that he shot Baldwin or Turley. The defendant stated that he had frequently seen people reach over the bar to grab a bottle of beer.

On cross-examination, the defendant denied having financial problems, but admitted that business at his tattoo shop was slow and he was behind in the rent. The Woolleys' only income came from the tattoo shop. He also conceded that Monday nights at Phylly's were generally less crowded. When the defendant went into Phylly's on the afternoon of February 20, 1995, he took the gun into the bar because he did not want to leave it in the truck. When he returned to Phylly's after going home at dinnertime, the gun was in his coat pocket. The defendant admitted he had no intention of target shooting in the evening because it was already dark.

The defense also presented the testimony of Kewanee Police Detective Kenneth Ince. Detective Ince testified that he took a statement from Marcia Woolley on February 21, 1995. In that statement, Marcia stated that the defendant shot Turley first and Baldwin second. During an offer of proof, taken outside the presence of the jury, Marcia Woolley took the stand and stated that she would invoke her fifth amendment privilege against self-incrimination in response to all questions regarding the murders.

David Dailey testified for the defense that he had been married to Marcia Woolley for 10 years before they were divorced in 1990. Dailey stated that he and Marcia had gone hunting together and Marcia knew how to fire a gun. Dailey also related that Marcia had a very violent temper when consuming alcohol and that she would get very jealous of other women. According to Dailey, when jealous, Marcia would "do things physically." On cross-examination, Dailey admitted that his divorce from Marcia was not amicable and that there had been a fight for custody of the children, which Marcia won.

Dawn Swearingen also testified for the defense. Swearingen stated that she was aware of animosity between Dee Turley and Marcia Woolley. Approximately two years' earlier, Marcia had told her that she suspected an affair between the defendant and Turley. Marcia stated that "someday she would get her revenge on Dee." According to Swearingen, Marcia made similar comments on quite a few occasions. Swearingen, however, never saw Marcia actually carry out any of these threats.

Rita DeVinney also testified that she had heard Marcia Woolley, on many occasions, threaten to "get" Turley "when she least expected it." DeVinney stated that Marcia asked her one Friday night to meet her at Phylly's to "back her up" so that she could "get" Turley. DeVinney did not know what Marcia meant by "get" Turley so she did not meet Marcia.

Gail Weir also testified that she had witnessed Marcia Woolley and Turley argue or fight. Weir stated that, approximately one year earlier, she heard Marcia accuse Turley of having an affair with the defendant and threaten her that she "would get what she had coming." Marcia also told Weir that she had caught the defendant at Turley's house.

In rebuttal, the State called David Aldred. Aldred testified that he works at Blue Chip Industries and that he helped the defendant and Marcia obtain jobs there. The Woolleys worked at Blue Chip for a couple of months and then quit. The defendant told Aldred that he was having financial problems and that he owed a lot of money in taxes. The defendant also made a comment to Aldred, in early 1994, that it would be easy to commit a crime in Kewanee. On another occasion, while the defendant and Aldred were both drunk, defendant told Aldred that it would not bother him to "shoot up" an establishment or to kill someone.

Following closing arguments, the jury deliberated and returned a verdict finding the defendant guilty on all counts. The eligibility phase of the defendant's death sentencing hearing commenced immediately. No evidence was presented at the eligibility hearing, but arguments were presented by both sides. The jury found the defendant eligible for the death penalty based upon three statutory aggravating factors: (1) murder of two or more individuals (720 ILCS 5/9-1(b)(3) (West 1994)); (2) murder in the course of another felony (720 ILCS 5/9-1(b)(6) (West 1994)); and (3) murder committed in a cold, calculated and premeditated manner pursuant to a preconceived plan, scheme or design to take a human life (720 ILCS 5/9-1(b)(11) (West 1994)).

The aggravation-mitigation phase of the death penalty hearing began one week later. The State first called Lieutenant Rod Huber of the Henry County sheriff's department. Lieutenant Huber testified that the defendant had been convicted in 1982 and 1984 of misdemeanor theft, in 1984 of criminal damage to property, a misdemeanor, and in 1984 of possession of cannabis, a misdemeanor.

The State again called Donald Tomsha. Tomsha testified that the defendant told him that he had done Baldwin "a favor" by shooting her the third time, since she would have been paralyzed had she lived. Tomsha testified that the defendant expressed no remorse for the murders, but rather, stated he would do it again. According to Tomsha, the defendant stated that he should have shot and ...


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