People v. Parmly , 117 Ill. 2d 386 ( 1987 )

JUSTICE SIMON

delivered the opinion of the court:

A jury in the circuit court of Marion County found the defendant, Jeffrey D. Parmly, guilty of one count of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — l(a)(2)) and one count of felony murder (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(a)(3)) in connection with the killing of L. D. Young. The same jury found the defendant eligible for the death penalty. The defendant elected to have the trial judge alone hear the evidence in aggravation and mitigation, and the jury was then dismissed. After hearing that evidence, the judge sentenced the defendant to death. The case is before us pursuant to the constitutional provision for automatic review in cases in which the death penalty has been imposed. Ill. Const. 1970, art. VI, sec. 4(b).

L. D. Young, who suffered from a number of serious physical disabilities, including the amputation of both his legs below the knees, was found dead on May 12, 1984, inside his home in rural Marion County. He had been beaten and had also sustained a gunshot to the head from a .22-caliber pistol and another shot to the neck. A pathologist testified that the close-range shot to the head was fatal and that Young did not die from the shot to the neck. Pieces of broken ashtrays were found near Young’s body, and blood was detected in various places. A .38-caliber pistol, in a snapped holster, was found underneath his body, and the body had been moved after death. Young’s truck, a .22-caliber pistol, and his wallet were missing, and his safe was open when police arrived at the scene.

The police learned from Charlie Voss that he, Larry Foutch, and Richard Cook had discussed burglarizing Young’s house both on Wednesday, May 9, and later on Friday, May 11. Voss, Foutch and Cook set out for the victim’s house on May 9, although Cook turned back before getting there. Voss and Foutch gained entrance to Young’s house on a pretext of needing a ride back to town, they talked with Young, and Young eventually drove them himself. Several hours later, believing that Young had left his house, Voss and Foutch returned to the vicinity but found that Young was still there. On Friday, May 11, after spending considerable time walking around, drinking, and talking, Foutch and Cook determined to return to Young’s house to burglarize it; Voss, however, went home.

Acting on Voss’ information, the police apprehended Cook. Cook gave a statement to the police implicating himself, the defendant, and Foutch. Cook eventually pleaded guilty to armed robbery and received a sentence of 10 years in return for his testimony.

Cook was the star prosecution witness at the defendant’s trial. Cook was a good friend of Voss and had known Larry Foutch for seven or eight years. Cook substantially verified Charlie Voss’ testimony as to the preexisting plan to burglarize Young’s house and as to the events of the evening of May 11 up to the time Voss departed. Cook added that he and Foutch had gone to Young’s on Thursday, May 10, but left when it appeared that Young was home.

Cook first met the defendant on Friday, May 11 at Hap’s Arcade. At some point the defendant was advised of the plan to break into Young’s home and, according to Cook, said that if they went there, to pick him up at the Depot Lounge first. Later in the evening, Jerry Patten and his brother, Walter, dropped Foutch, Cook, and the defendant off in the rural area in which Young lived.

Cook testified that, after being dropped off, the three walked down some railroad tracks, cut through a field, and then through an abandoned house, ending up on the road in front of Young’s house. They talked over breaking into the house; when car lights appeared they hid behind a tree for several minutes. The three then walked down the road to see if other cars were coming.

When they arrived at Young’s house, they again discussed breaking in. Either Foutch or the defendant knocked on Young’s door, and a light came on. Young let them into the house after being told they had been stranded in the country by some girls. Young did not have his artificial legs on. Cook tried to make a phone call, but hung up when he could not think of anyone to call. The defendant also attempted to make a phone call.

After they had conversed for about 30 minutes (according to Cook it was 1:30 a.m.), Young suggested that the three could probably get a ride at the Banks Bowl nearby. Foutch, Cook, and the defendant then left the house, but the defendant asked to use the phone again, and he and Foutch reentered. Cook was standing in the road and heard “scuffling” from inside the house. After about two minutes, he heard two gunshots. The defendant came running out, followed by Foutch. There was blood on the defendant, and he was carrying a gun. One of the two told Cook that Young was dead, and they all three ran across a field until they hit an electric fence. The defendant suggested that they go back to wipe off fingerprints and get the money. When Cook said he did not want any part of it, the defendant put the gun to his head, but Foutch talked him out of doing anything.

According to Cook, they returned to Young’s house and attempted to remove fingerprints. The defendant grabbed Young’s wallet and keys and opened the safe, which turned out to be empty. Foutch went through the victim’s dresser and took some coins. The three then took Young’s truck. After they had proceeded about a mile, the defendant stated that he had left his jacket and sunglasses at the scene, and they once again returned to Young’s house. After the defendant secured those items, they left the scene.

Prior to trial, the defendant moved to prevent Cook from reciting any hearsay statements made to him by Foutch the day after the incident on the grounds that such declarations were not within the co-conspirator exception to the hearsay rule and that their admission would deprive the defendant of his sixth amendment right to confront Foutch. The trial judge denied the motion in limine. Cook was permitted to testify that he saw Foutch the day after the killing, and told Foutch that if questioned by the police, he “wasn’t going to hold nothing back.” Foutch told him not to talk and advised him to be calm. Foutch then related what happened inside Young’s house after Cook had left. As repeated by Cook at trial, Foutch said that the defendant had kicked Young in the head and then wrestled with him. Foutch hit Young on the head with an ashtray. Foutch then took a gun and shot Young once. The defendant obtained the gun and “finished him off” by putting the gun to Young’s head and firing. Cook testified that Foutch told him Young was still alive after the first shot.

Foutch, who pleaded guilty in a separate proceeding, did not testify at the defendant’s trial. In addition to Cook, various police officers and forensic experts testified, and the State also called Hershel Hull, who worked for Young and who discovered his body on May 12. Hull stated that several weeks before the killing, the defendant and Foutch had come to his house attempting to sell him “some stuff.’’

Several defense witnesses placed the defendant at a party on the evening of May 11, but this testimony was not inconsistent with the defendant being at Young’s house at the time of the killing. James Miller, a friend of both Foutch and Cook, testified that, while he was in jail with Cook, Cook told him that it was Foutch who came out of Young’s house carrying the gun and Foutch who subsequently put the gun to Cook’s head.

The defendant also testified. He stated that he met Foutch for the first time on the evening of May 11 when Foutch and others gave him a ride to the Depot Lounge. According to the defendant, Foutch returned to the Depot a short time later and asked him whether he wanted to “go cruising” to Young’s house to pick up some money that Young owed Foutch. After the Pattens let them out of the car, the defendant, Foutch, and Cook walked up the road to Young’s house. Young admitted them to the house, and Foutch and the defendant then conversed with him. After Coók and the defendant attempted to make phone calls, Young suggested they try getting a ride at the Banks Bowl. Cook walked out of the house. After Young refused Foutch’s request to give them a ride, Foutch kicked Young in the head. When the defendant bent down to help Young, Young grabbed him and started wrestling with him. Foutch kicked Young and hit him over the head with an ashtray. Foutch took a gun off the mantel and shot Young twice. According to the defendant, it was Foutch who put the gun to Cook’s head after they left the house and Foutch who suggested returning to wipe off the fingerprints.

The defendant further related that, on their return to the house, Cook and Foutch argued over a wallet, and Cook announced the safe was empty. Foutch made the defendant drive Young’s truck even though the defendant had never had a driver’s license. When Foutch learned the defendant’s jacket had been left in the house, he demanded they go back a second time. The three finally drove to Centraba, and the truck was left at Shorty’s Disco. The defendant had never before met Cook or Foutch and had no idea a burglary or robbery was planned. He admitted to four prior burglary convictions, three theft convictions, and a conviction for trafficking in contraband in a penal institution.

On cross-examination, the defendant was questioned about several aspects of the statement he gave to the police after his arrest, which was recounted by a police officer at trial. When asked whether he initially denied any knowledge of what had happened, the defendant first responded that he had not. He then stated that, since he did not know Young, he did not know who the police were referring to in their interrogation. The defendant denied that he told the police that he was not involved in the struggle with Young. He could not recall whether he told them that he was at the Depot Lounge until 2 a.m. or that he was drunk.

The defendant raises numerous issues concerning both his conviction and the sentence imposed, but we need discuss only one of these. The defendant contends that he deserves a new trial because Cook’s testimony about Foutch’s statements made the day after the killing, including Foutch’s declaration that the defendant, not Foutch, fired the fatal shot, was impermissible hearsay which should have been excluded. ■

The State does not dispute that Foutch’s declarations, recited by Cook at trial, constituted hearsay. Its position, however, is that the statements fall within the co-conspirator exception to the hearsay rule. That exception permits declarations made “in furtherance of and during the pendency of the conspiracy” to be admitted not only against the declarant, but also his co-conspirators upon an independent, prima facie showing of a conspiracy. (People v. Goodman (1980), 81 Ill. 2d 278, 283.) While Foutch’s statements to Cook clearly occurred after the real object of the conspiracy — the robbery and killing of Young — was completed, the State sought to admit them as furthering a subordinate conspiracy or an extension of the conspiracy to conceal the offenses. Assuming that the co-conspirator exception does include so-called “concealment phase” statements, Foutch’s hearsay declarations implicating the defendant would not fall within the exception since they were not made in furtherance of any effort at concealment.

The State’s theory is that Foutch described the events surrounding the shooting — including the fact that the defendant fired the fatal shot — in order to assure Cook’s silence by impressing him with the seriousness of the offense, thus furthering the cover-up of the crime. The State conjectures that although Cook knew the victim was killed in the course of the robbery, he may have believed that the killing was done by Foutch and the defendant in self-defense or in response to provocation by the victim. This view of the conversation to which Cook was allowed to testify is wholly without support in the record. Cook’s testimony revealed no doubts on his part as to the fact that a murder had occurred, and there is nothing to suggest that Foutch believed Cook labored under any misapprehension as to the culpable nature of the killing. To the contrary, Cook testified that when they initially fled the scene of the killing and the defendant suggested they return to remove fingerprints and get the money, Cook replied that he didn’t want to “go to jail for murder for something [he] didn’t do.” Given this comment, as well as the other circumstances surrounding the offense — the late night trip to Young’s home, Cook’s participation in the burglary plot, the action by either the defendant or Foutch in threatening Cook with a gun when he balked at going back for the money, and the attempts by the three to cover their tracks — it is fanciful to suppose that Cook harbored any benign view of the killing or was so naive that he needed to be impressed with its seriousness.

In context, Foutch’s obvious motive in telling Cook that the defendant fired the second shot was not to conceal the crime but to ensure that primary blame for the crime fell on the defendant. Foutch was responding to Cook’s threat to tell all to the police — which is precisely what Cook did upon his arrest. In that eventuality, it was in Foutch’s interest to give Cook a story comparatively favorable to Foutch. While an attorney caught in similar circumstances might realize that Foutch, on his own story, could be guilty of murder by accountability, there is no reason to believe that Foutch possessed such a high degree of legal sophistication. As a matter of common sense, Foutch could certainly have believed that by implicating the defendant as the one who fired the second shot point-blank at Young’s head, and emphasizing that Young was still alive after the first shot, the defendant and not Foutch would bear the full brunt of the criminal law.

The only thing that Foutch told Cook which had to do with concealing the crime was his advice not to talk to the police. Foutch’s statements describing the events inside Young’s house were not calculated to conceal the offense and had no relevance to such a purpose. No matter how broadly we read the co-conspirator exception to the hearsay rule, what Foutch told Cook does not fall within that exception. The trial judge erred in permitting Cook’s testimony repeating what Foutch told him about the details of the killing.

The State maintains that, even if admission of this hearsay was error, the error was harmless beyond a reasonable doubt. The State advances two arguments in support of the harmless-error theory. First, the State contends that the hearsay was not the most damaging evidence that the defendant fired the fatal shot. In addition to the hearsay declaration, Cook testified that he heard two gunshots and thereafter the defendant ran out of the house with a gun. This testimony, however, was disputed by James Miller, who had been a cellmate of Cook’s after Cook’s arrest. According to Miller, Cook told him that Foutch, not the defendant, was the one who ran out of Young’s house with the gun. Cook, who had known Foutch for years but only met the defendant on the night of the crime, may have had his own motive for implicating the defendant. Foutch’s hearsay declaration also served to buttress the effect of Cook’s testimony that the defendant had the gun. It cannot be said that absent Foutch’s hearsay statement the jury would have been persuaded that the defendant in fact participated in the shooting.

The State responds, that the error was nevertheless harmless because the jury could have returned the same verdicts, convicting the defendant of both knowing murder and felony murder, without evidence that the defendant fired any shots at all. As the State correctly notes, the jury could have believed that Foutch killed the victim and yet concluded there was sufficient evidence to find the defendant guilty as an accomplice on both counts (Ill. Rev. Stat. 1983, ch. 38, pars. 9 — 1(a), 5 — 2(c); People v. Pierce (1944), 387 Ill. 608). In effect, the State argues that it need not rely on the evidence that the defendant pulled the trigger to sustain the convictions.

This argument is based on a misunderstanding of the harmless-error rule. The question is not what the State relies upon on appeal, but what the jury might have relied upon in reaching its verdict. The single most damning piece of evidence against the defendant was Cook’s testimony that Foutch told him the defendant went up to the already injured Young and shot him in the head. This evidence not only directly implicated the defendant as the killer, but may have affected the jury’s assessment of the defendant’s credibility in testifying that he was unaware Foutch and Cook were planning to commit a burglary and that he was attempting to assist Young, not injure him. The State is clearly correct that the jury could have rejected the defendant’s version, as well as the testimony of other defense witnesses, and convicted the defendant on both counts even absent the hearsay evidence. We cannot say beyond a reasonable doubt, however, that the jury would have done so or that “the erroneous admission of the hearsay declaration may not have been the weight that tipped the scales against” the defendant (Krulewitch v. United States (1949), 336 U.S. 440, 445, 93 L. Ed. 790, 795, 69 S. Ct. 716, 719).

Although our review of the record satisfies us that there was sufficient evidence presented to convict the defendant, the error, for the reasons stated above, cannot be considered harmless. The convictions must therefore be reversed and the cause remanded to the circuit court of Marion County for a new trial.

Reversed and remanded.