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People v. Tolbert

July 26, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE
v.
ELIZABETH H. TOLBERT, DEFENDANT-APPELLANT



Appeal from the Circuit Court of Hardin County. No. 95-CF-35 Honorable Thomas H. Sutton, Judge, presiding

The opinion of the court was delivered by: Justice Maag

UNPUBLISHED

The State filed an information in the circuit court of Hardin County on July 29, 1995, charging Elizabeth H. Tolbert (defendant), James M. Sanford, defendant's brother, and Chris Reed, also known as Chris Olveda, with the offense of first-degree murder in violation of section 9-1(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(1) (West 1994)). The information specifically charged that each of the foregoing people, without lawful justification, shot Wilson D. Tolbert, Jr., knowing said act would cause his death. An amended information was filed on January 17, 1996, charging defendant with first-degree murder for shooting Wilson on May 24, 1995. Additionally, the amended complaint charged defendant with conspiracy to commit first-degree murder. More specifically, it alleged that defendant had agreed with Sanford that a murder should be committed and then furnished Sanford transportation to the scene of the murder in violation of section 8-2(a) of the Code (720 ILCS 5/8-2(a) (West 1994)). We note parenthetically that Sanford was convicted of first-degree murder and conspiracy to commit first-degree murder in 1996. People v. Sanford, No. 5-97-0062 (1998) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)). The circuit court severed the three prosecutions early in the proceedings of this case, and the issues raised herein refer only to defendant's case.

On March 27, 1996, defendant pleaded guilty to a charge of first-degree murder for her involvement in the death of her husband. In exchange for her plea, the State dismissed the accompanying charge of conspiracy to commit first-degree murder and recommended a sentence of 45 years' imprisonment. On May 5, 1997, defendant filed a motion to withdraw her guilty plea. The motion to withdraw was granted subsequent to a hearing. Following a jury trial, defendant was convicted of first-degree murder and conspiracy to commit first-degree murder. The circuit court sentenced defendant to 60 years' imprisonment. Defendant appeals.

Initially, we note that defendant has filed a motion to strike the "facts" section of the State's brief. The State filed an objection and the motion was taken with the case. After reviewing the "facts" section of the State's brief, we note that there are several comments in that section that constitute argument and are, therefore, improper pursuant to Supreme Court Rule 341(e)(6) (177 Ill. 2d R. 341(e)(6)). Even though we are denying defendant's motion to strike the "facts" section of the State's brief, we will ignore the offensive parts of that section and note that they do not enter into our decision in this case.

Defendant initially claims that the circuit court erred when it allowed the introduction of other-crimes evidence, when testimony was given regarding the fraudulent loans secured by defendant far in advance of the offenses charged. Defendant also claims that reversible error occurred because the circuit court failed to give a limiting instruction on other-crimes evidence. Defendant is apparently claiming that the evidence of fraudulent loans was introduced to prejudice the jury against her since it showed evidence of defendant's other criminal acts. Defendant claims that since she was charged with first-degree murder and conspiracy to commit first-degree murder, the other criminal acts had nothing to do with the case at hand. We disagree.

Other-crimes evidence is relevant for any purpose other than to show a defendant's propensity to commit a crime. People v. Luczak, 306 Ill. App. 3d 319, 324, 714 N.E.2d 995, 999 (1999). This type of evidence is prejudicial because a jury might convict the defendant because it believes that she is a bad person and deserves punishment. People v. Markiewicz, 246 Ill. App. 3d 31, 37, 615 N.E.2d 869, 874 (1993). Other-crimes evidence may be relevant and admissible, however, for any other legitimate purpose, such as to prove modus operandi, the defendant's state of mind, consciousness of guilt, the absence of an innocent frame of mind or the presence of criminal intent, the circumstances or context of defendant's arrest, the circumstances of the crime charged that would otherwise be unclear, how an otherwise implausible fact relating to the crime charged arose, the placement of the defendant in proximity to the time and place of the crime, the identification of the weapon used in the crime, whether the crime charged was actually committed, opportunity or preparation, a dislike for or an attitude toward the victim, knowledge, intent, identity, motive, or the absence of mistake or accident (Luczak, 306 Ill. App. 3d at 324, 714 N.E.2d at 999; People v. O'Toole, 226 Ill. App. 3d 974, 991, 590 N.E.2d 950, 961-62 (1992)), if the probative value outweighs the risk of unfair prejudice. Markiewicz, 246 Ill. App. 3d at 38, 615 N.E.2d at 874. This list of purposes " 'should not be taken to mean that these are the only purposes for which evidence of other crimes may be admitted.' " O'Toole, 226 Ill. App. 3d at 991, 590 N.E.2d at 962 (quoting People v. Kimbrough, 138 Ill. App. 3d 481, 486, 485 N.E.2d 1292, 1297 (1985)). In fact, the Illinois Supreme Court has stated that evidence of other crimes is admissible if it is relevant to establish any material issue other than the propensity to commit crime. People v. Stewart, 105 Ill. 2d 22, 62, 473 N.E.2d 840, 860 (1984). Evidence is relevant if it tends to make the existence of any fact of consequence more or less probable than without the evidence. People v. Young, 263 Ill. App. 3d 627, 639, 635 N.E.2d 473, 483 (1994). Although any evidence that tends to show that an accused had a motive for killing the decedent is relevant, to be competent it must at least, to a slight degree, tend to establish the existence of the motive relied on. Stewart, 105 Ill. 2d at 56, 473 N.E.2d at 857.

It is within the sound discretion of the circuit court to determine whether the evidence of other crimes is relevant to a material issue and whether the probative value outweighs its prejudicial impact. Luczak, 306 Ill. App. 3d at 327, 714 N.E.2d at 1001. The circuit court's ruling as to the admissibility of such evidence will not be reversed absent a clear showing of an abuse of discretion. People v. Oaks, 169 Ill. 2d 409, 454, 662 N.E.2d 1328, 1348 (1996). An abuse of discretion occurs when the circuit court's decision is arbitrary, fanciful, or unreasonable or where no reasonable person would take the view adopted by the circuit court. Markiewicz, 246 Ill. App. 3d at 38, 615 N.E.2d at 875.

Defendant specifically complains about the testimonies of Norman Graham, branch manager of American General Finance, and Larry Barnard, vice president of Illinois One Bank. Graham testified regarding two separate notes that defendant and her husband had with American General Finance. One loan was made on May 17, 1993. Graham recalled that the loan was applied for by defendant and a man representing himself to be Wilson. The man carried a driver's license with Wilson's name and a picture of Sanford. The first loan was paid by a renewal, when more funds were added to it and a new note was signed. Defendant provided a verification of income by presenting a signed check from Reed's Market (Olveda's parents' business) that Olveda provided to her. The second note was paid by credit life insurance when Wilson was killed. Graham also agreed that approximately $42,000 in life insurance benefits had been paid to Wilson's two children.

Barnard stated that he had worked for Illinois One Bank, which had been known by various names, for the previous eight years as senior loan officer and vice president. Barnard testified regarding old loans that Wilson had with the bank prior to his marriage to defendant. One of the loans was a note for a mortgage, and his signature had been notarized by a bank employee, Lisa Daughenbaugh, now Lisa Daymon. Barnard also testified regarding the questioned bank documents, which consisted of a consumer credit application, a residential real estate loan application, a promissory note, and a mortgage instrument. All of these documents bear defendant's and Wilson's signatures and were signed in August and September of 1993. Barnard also noted that he had obtained a copy of a driver's license bearing Wilson's name, but not his picture. The driver's license was issued on September 21, 1993.

Additionally, Steven D. Hampton, a forensic scientist with the Illinois State Police, testified that his job is to examine questioned documents. Hampton compared Wilson's known signatures to signatures from the questioned documents. Hampton also reviewed writing samples from defendant and Sanford. Hampton stated that Wilson had not signed the American General Finance documents or the questioned bank documents. Hampton opined that defendant and Sanford had signed the questioned documents.

In the case at bar, the foregoing testimonies were necessary and relevant to establish defendant's motive for wanting Wilson dead. A review of the record shows that defendant and Sanford were drug addicts and that they were desperate for money. The evidence showed that their drug habits were being supported by Wilson's income and the fraudulent loans that defendant and Sanford obtained by forging Wilson's signature. The testimony at the trial showed that approximately 1½ weeks before he was killed, Wilson told defendant that he wanted a divorce. Wilson was upset with defendant because he discovered that he was "flat broke." In fact, Wilson told Jerry Haney, a neighbor, that prior to this time, if he had wanted anything that was $100,000, he could have written a check for it. He told Jerry that his electricity was about to be turned off and that he had taken the checkbook and the savings account book away from defendant. Wilson claimed that he gave defendant $800 per month to pay the bills. He also stated that he made $1,200 every two weeks. Although defendant called Jerry a few days later to tell him that she and Wilson were back together, she knew that it was only a matter of time before Wilson discovered the fraudulent loans and bounced checks.

Defendant also knew that Wilson was becoming suspicious that she was using drugs. Belinda Hicks testified regarding defendant's use of methamphetamine. Even though Belinda admitted being a drug user herself, she claimed that defendant's drug use scared her. She stated that defendant was paranoid, losing a lot of weight, and acting strangely. Belinda claimed that Wilson realized "the last couple of weeks" before he was murdered that defendant was using drugs. Since Wilson had already asked defendant for a divorce and then went back to her, defendant knew that it was only a matter of time before he discovered all of the other things that she had been hiding from him. Defendant could infer that if she disclosed all of the information to Wilson or if he discovered it on his own, he would divorce her and her supply of money would end. Moreover, defendant knew that when Wilson discovered that she had forged his name on loan documents, she would, more than likely, face criminal prosecution for fraudulently securing loans in Wilson's name.

A review of the foregoing evidence shows defendant's motive in wanting Wilson dead. The evidence of the fraudulent loans was not offered to show defendant's propensity to commit crimes and, therefore, was relevant and competent.

Defendant claims that the State's evidence showed that she was going to tell Wilson about the fraudulent loans on the day that he was killed. Hence, defendant contends that Wilson's potential discovery of the loans was not a valid theory of motive. We disagree.

The jury was entitled to either believe or disbelieve defendant's testimony that she was going to tell Wilson about the fraudulent loans. If the jury chose to disbelieve defendant's testimony, the State's theory that defendant had a motive to kill Wilson was viable.

Defendant cites the People v. Harris, 288 Ill. App. 3d 597, 681 N.E.2d 602 (1997), decision to support her argument that prejudice resulted from the admission of the fraudulent-loans evidence. We note, however, that the relevant portion of the Harris decision focused on whether defense counsel was ineffective for failing to request a limiting instruction regarding the introduction of other-crimes evidence and that the court ultimately determined that counsel was not ineffective. The Harris court never stated that it is plain error if the court fails to give a limiting instruction on other-crimes evidence. Hence, the Harris decision is distinguishable from the case before this court. Nevertheless, we find some of the remarks by the Harris court to be instructive.

Evidence of other crimes carries a risk of unfair prejudice to the defendant, even though it might be relevant for some limited purpose in the case being tried. The danger in the admission of that evidence is that the jury will use the evidence for an improper purpose, such as to conclude that the defendant has a propensity to commit crime. Harris, 288 Ill. App. 3d at 605, 681 N.E.2d at 608. We agree with the court's analysis in Harris: "Trial judges should recognize the potential peril, whether or not defense counsel first proposes a limiting instruction. The best way to address the problem is to use the limiting instruction contained in Illinois Pattern Jury Instructions, Criminal, No. 3.14 (3d ed. 1992), taking care that the proper limited purpose of the evidence is used." Harris, 288 Ill. App. 3d at 606, 681 N.E.2d at 608. The court went on to note that a circuit court should not only instruct the jury in accordance with Illinois pattern instructions at the close of the case, but the court should also instruct the jury orally from the bench, unless the defendant objects, at the time the evidence is first presented to the jury. Harris, 288 Ill. App. 3d at 606, 681 N.E.2d at 608.

We note, however, that it is not always plain error for a court to fail to instruct the jury regarding the limited purpose for other-crimes evidence. People v. Hooker, 253 Ill. App. 3d 1075, 1085, 625 N.E.2d 1081, 1090 (1993). "Generally, the only instructions necessary to ensure a fair trial include the elements of the crime charged, the presumption of innocence, and the question of burden of proof." Hooker, 253 Ill. App. 3d at 1085, 625 N.E.2d at 1090. Plain error will be found only when the defendant is deprived of a fair trial (Hooker, 253 Ill. App. 3d at 1085, 625 N.E.2d at 1090) or when the evidence in a case is closely balanced. People v. Mullen, 141 Ill. 2d 394, 401, 566 N.E.2d 222, 226 (1990).

In the instant case, a review of the record shows that defendant's trial included the necessary instructions. Defendant complains, however, that plain error occurred when the circuit court failed to give a limiting instruction to the jury regarding other-crimes evidence, because the evidence was closely balanced. We disagree.

The record shows that defendant was a homemaker whose primary responsibilities included caring for her and Wilson's two young children and managing the family's finances. Sanford was unemployed. Olveda (also Wilson's cousin) worked at a convenience store that her parents owned. The evidence showed that defendant, Sanford, and Olveda were heavy methamphetamine users. Although defendant sold methamphetamine, she was unable to afford the habit. Olveda testified that she, defendant, and Sanford were addicted to methamphetamine and took it hourly. Olveda stated that each one of them required more methamphetamine each time because their bodies had built up a tolerance for the drug. Olveda stated that in order to keep herself supplied, she sold methamphetamine for defendant.

Wilson did not approve of taking illegal drugs, so defendant kept her methamphetamine use from him. The record shows, however, that approximately two weeks before Wilson's death, he became suspicious that defendant was involved with drugs. Wilson was aware that his electricity was about to be turned off and that he and defendant were having financial problems. Wilson never learned about the fraudulent loans that defendant and Sanford had obtained in his name. Subsequent to a brief separation, defendant and Wilson reconciled. Wilson then denied defendant access to their checking and savings accounts, placed her on an allowance, and set up a separate account for household expenses.

The State used defendant's testimony from Sanford's trial in May of 1996. Defendant's testimony resembled Sanford's testimony. Defendant stated that Wilson was upset when he came home from work on the morning of May 24, 1995. They argued quite a bit about money because they had a lot of bills and were receiving letters on their debts. After arguing with defendant, Wilson left his home to check on his cattle. He was angry. He planned to mow grass after checking the cattle. Sanford arrived at the Tolberts' residence after Wilson left. According to defendant, she told Sanford that she was going to "come clean" with Wilson and tell him about the fraudulent loans. Defendant also told Sanford that there would be no more drugs at her house. In fact, Sanford and Olveda were not allowed at the Tolberts' home because Wilson was very much against using drugs. Defendant claimed that Sanford left her home claiming that he was going to talk with Wilson. According to Sanford, this angered him and he decided on his own that he was going to find Wilson and kill him. Although Sanford acknowledged that he had maintained his innocence at his own trial (even though he was convicted of Wilson's murder) and had written letters to others protesting his innocence, he admitted at defendant's trial that he had shot Wilson in the back with a .22-caliber firearm. Sanford claimed that after the shooting, he retrieved Wilson's gun from his pocket. Sanford claimed that he then stopped at a local dump, where he buried the .22-caliber firearm that he had used to shoot Wilson. The bullet paralyzed Wilson from the waist down.

Defendant testified that in the afternoon, she went to check on Wilson. We note parenthetically that Sanford claimed that defendant had called him in the early afternoon and asked him to check on Wilson and to call her back. Defendant claimed that as she went to look for Wilson, she passed Olveda's Monte Carlo and eventually discovered that her husband had been shot. Wilson told her that Sanford had shot him. Defendant left Wilson alone. Instead of calling for help, defendant drove back to the place where she saw the Monte Carlo. She found Sanford and Olveda and informed Sanford that Wilson was not dead. Defendant told Sanford that Wilson stated that Sanford had shot him. Sanford replied that Wilson had not seen him. Olveda told defendant to call an ambulance. Olveda stated that defendant and Sanford whispered for quite some time. She could not hear what they were saying. They were both very calm during this conversation. Defendant attempted to get Olveda to go back to the farm with her. Olveda refused. Olveda noticed that defendant had a small silver pistol in her vehicle. Olveda claimed that Sanford and defendant left together and drove toward the Tolberts' farm. Olveda stated that she left in her vehicle and drove in the opposite direction. Olveda stated that after a few minutes, she turned her vehicle around and also drove toward the farm. Olveda passed defendant driving her vehicle and saw Sanford walking on the road. Olveda picked Sanford up. Sanford showed Olveda the small silver pistol that defendant previously had in her vehicle. They drove to Decker Springs, where Sanford hid the murder weapon underneath a rock.

During Sanford's testimony, he admitted that he later shot Wilson between the eyes. Sanford claimed, however, that it was Olveda who drove him to the scene of the crime, rather than defendant. Sanford testified that he and Olveda originally agreed to blame Wilson's murder on defendant, but he later decided that he did not want to see defendant convicted since she had nothing to do with Wilson's murder.

Defendant admitted that after she discovered that Wilson had been shot, she drove past several homes of people that she knew, despite the fact that they were home. Some of these people considered her a friend, and some had allowed her to use their telephones in the past. Defendant eventually stopped at Mack Decker's residence. Defendant claimed that the reason that she stopped at Mack Decker's residence was that he was the only friendly person that she knew that lived on the highway. We note, however, that Decker stated that he did not know defendant. On another occasion, defendant claimed that she went to Decker's home because no one else appeared to be home.

Sanford told Kathy Davis, his and defendant's half-sister, that he "did Junior [Wilson]" and mentioned several details about Wilson's murder. Kathy stated that Sanford implied that he could get rid of her husband also. Sanford told Kathy that defendant had given him a "big bag of dope" to kill Wilson. Additionally, defendant told Kathy that she and Sanford had "to do" Wilson because he had "turned bad." Kathy heard defendant tell Sanford that he was going to "blow it" and that he had to "kiss [Olveda's] a**."

Tracy Davis, Kathy's husband, overheard defendant telling Sanford that Olveda knew too much and that he was going to have to "suck up" to her. After Sanford left, defendant told Tracy that Sanford could not leave Olveda because she knew too much. Defendant said that she was "going to get rid of [Olveda]" because she "would tell." When Tracy told defendant that Olveda planned to return to Illinois, defendant stated that Olveda would never make it back to Illinois, that she ...


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