Petition for Writ of Certiorari — Illinois v. Gibons

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8 6 1752 | Supreme Court, U.S.

FILED

NO. | pe

IN THE 4 ¢ yer

SUPREME COURT OF THE UNITED ST&ATBRSEPH F. SPANIOL, JR,

OCTOBER TERM, 1986 CLERK

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

Vs.

JACQUELINE GIBONS and

BARRY WILSON,

Respondents.

WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

PETITION FOR WRIT OF CERTIORARI

NEIL F. HARTIGAN,

Attorney General,

State of Illinois

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

Attorney for Respondent.

RICHARD M. DALEY

State's Attorney

Cook County, Illinois,

500 Richard J. Daley Center

Chicago, Illinois 60602

THOMAS V. GAINER, JR.,

MARY E. SHIELDS,

Assistant State's Attorney

Of Counsel. ;

*counsel of Record.

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

VS.

JACQUELINE GIBONS and

BARRY WILSON,

Respondents.

WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

PETITION FOR WRIT OF CERTIORARI

NEIL F. HARTIGAN,

Attorney General,

State of Illinois

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

Attorney for Respondent.

RICHARD M. DALEY

State's Attorney

Cook County, Illinois,

500 Richard J. Daley Center

Chicago, Illinois 60602

THOMAS V. GAINER, JR.,

MARY E. SHIELDS,

Assistant State's Attorneys

Of Counsel.

*Counsel of Record.

QUESTION PRESENTED FOR REVIEW

Whether respondents' motions’ for

severance were properly denied where no true

conflict existed in the several defenses,

where each defendant confessed to the murders

and each confession interlocks with and

supports the confessions of the co-defendants

and where the trial court instructed the jury

that a defendant's statement was not to be

considered as evidence of guilt against a co-

defendant.

TABLE OF CONTENTS

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THE TRIAL COURT PROPERLY

DENIED RESPONDENTS ' MOTIONS

FOR SEVERANCE WHERE NO TRUE

CONFLICT EXISTED IN THE

SEVERAL DEFENSES, WHERE EACH

DEFENDANT CONFESSED TO THE

MURDERS AND EACH CONFESSION

INTERLOCKS WITH AND SUPPORTS

THE CONFESSIONS OF THE CO-

DEFENDANTS AND WHERE THE TRIAL

COURT INSTRUCTED THE JURY THAT

A DEFENDANT'S STATEMENT WAS

NOT TO BE CONSIDERED AS

EVIDENCE OF GUILT AGAINST A

CO-DEFENDANT ..ccccccccccccesecccene

ConclusiOfissse«> Deebee baa cee tm bean ive

ii

TABLE OF AUTHORITIES

Page

People v. Gibons and Wilson,

Ill. App. 3d ’ N.E.2d

(lst Dist., 5th Div. 1986)........ 20

Bruton v. United States,

391 U.S. 123, 88 S.Ct. 1620

20 L.Ed.2d 476 TLPOE) co ccseeseedcésce 21

Parker v. Randolph,

44 U.S. 62, 715, 99 S.Ct. 2132,

60 L.EdG.2ad 713 TASTE) coecesceeeseone 22

People v. Bassett,

56 Il1l.2d 285, 295,

307 N.E.2d 359 (1974)..... TeTTTLT ST 23

People v. Sanders,

103. Ill. App. 3d 700, 706,

431 N.E.2d 1145 (lst Dist.,

2nG@ DiGV.- EZ9GZ) cccccccecececeaseces 23

People v. Sanford, -

116 Ill. App. 3d 834, 841,

452 N.E.2d 710 (lst Dist.,

StH DIG. J9SS) ccoccesceecesesesseess 23

Lee v. Illinois,

U.S. ° L.Ed.2d P

S.Ct. (46 CCH S.Ct. Bull.

P. 13268022....... ccc cccccccccccce 26, 27

iii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

PEOPLE OF THE STATE OF ILLINOIS,

Petitioner,

VS.

JACQUELINE GIBONS and

BARRY WILSON,

Respondents.

WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

OPINION BELOW

The opinion of the Appellate Court

of Illinois is reported as People v. Gibons

and Wilson, — Ill. App. 3d , 500 N.E.2d

517 (1986), and is set forth in the Appendix

at A-l.

JURISDICTION

The jurisdiction of the Court is

invoked under 28 U.S.C. Sec. 1257(3).

STATEMENT OF THE CASE

Respondent Jacqueline Gibons”~ met

respondent Barry Wilson at the Price Group

Home in Chicago when she was 16 years of age.

(R. 1467-68) As the two became friends,

respondent Wilson would go to visit

respondent Gibons on Wednesdays at the office

where she worked. (R. 1488-89) During these

visits, respondent Gibons would cash _ her

paycheck and give money to respondent Wilson.

(R. 1488-89) Respondent Gibons' parents, the

victims, did not approve of the relationship

between their daughter and respondent Wilson.

(R. 1491)

In March of 1982 respondent Wilson

said he was beginning to feel frustrated

about Mr. and Mrs. Gibons' reign over their

daughter. (R. 1497, 1500) Respondent Wilson

stated that he wished the two were dead. (R.

1500) Defendant St. Pierre said that when he

met respondent Wilson, Wilson told St. Pierre

that he had a job for him that would pay good

money. (R. 1187) He said that respondent

Gibons wanted her parents killed. (R. 1187)

On July 27, 1982, Wilson and St.

Pierre broke a window at the Gibons' house

and went inside. (Re. 1187-88, 1332, 1504)

The two were not able to find any money in

the house, but did steal some food from the

refrigerator. (R. 1188, 1332) Respondent

Wilson then called respondent Gibons at her

office and told her he had fallen through a

window at her house and that she should go

home and clean up the mess before her parents

got home. (R. 1504-1505) After this

conversation, respondent Gibons called her

mother at work to tell her that respondent

Wilson had fallen through the window. (R.

1505-1506) Mrs. Gibons called the police.

(R. 1506) That evening, Investigator

McLaughlin of the Skokie Police Department

went to the Gibons' home to speak to the

family about pressing charges against

respondent Wilson. (R. 916-17, 1506)

The following day, respondent

Wilson telephoned respondent Gibons at her

office and told her that he needed money

because her "parents are going down tonight."

(R. 1507) Respondent Gibons told him that she

would have to get the money tomorrow. (R.

1111) The next day, respondent Wilson called

respondent ttienne again at her office. (R.

1507) Respondent Wilson then came to

respondent Gibons' office along with

defendant St. Pierre. (mR. 1507, 1509) The

three went for a walk and sat down to talk in

an alley. (R. 1117) Respondent Wilson said

that defendant St. Pierre would kill the

victims for $300. (R. 1113, 1509) Respondent

Gibons agreed to pay defendant St. Pierre the

money. [R. 2213) Respondent Wilson told

respondent Gibons that if she would just open

her door at 6:00 p.m. it would all be done.

(R. 1119) Defendant St. Pierre would commmit

the murders. (R. 1509) Respondent Wilson

also said that- after. defendant St. Pierre

comes in, respondent Gibons should wait a

little while and respondent Wilson would be

at the door. (Rs -$367)

Respondent Gibons left work at 4:30

p.m. on July 29, 1982. (R. 1120) Her father

picked her we at the Skokie Swift and the two

went home to eat dinner. (R. 1120) Shortly

after 6:00 defendant St. Pierre rang the

doorbell, as had been arranged. (R. 1510,

1511) Respondent Gibons answered the door and

introduced defendant St. Pierre to her

father. (R. 1811) Mr. Gibons then walked

into the kitchen. (R. 1572) At this point,

defendant St. Pierre took a hammer and

started hitting the victim on the head with

it. (R. 1195) Defendant St. Pierre inflicted

numerous hammer wounds all over the victim's

head, causing his death, (R. 1195, 1288)

Respondent Gibons then called

respondent Wilson, who had been waiting at a

nearby restaurant. (R. -1196, 1329, 1513)

Respondent Wilson came over to the house and

was let inside by respondent Gibons. (R.

1196, 1329, 1514) The three began cleaning

up the blood that had spattered all over the

kitchen. (R. 1128, 1197, 1330) While they

were cleaning, respondent Wilson handed

respondent Gibons the victim's wallet, from

which respondent Gibons removed all the

credit cards. (R. 1127-28, 1584-86)

Respondent Wilson also gave defendant St.

Pierre $210 cash. (R. 1199) The victim's

body was tied up in a blanket and placed in

the master bedroom. (R. 1128, 1198-99, 1330)

Detective McLaughlin then called to

ask about the complaint against resondent

Wilson for breaking the window. (R. 921,

928, 1129-30, 1515) Detective McLaughlin

spoke to respondent Gibons and asked~to speak

with her father. (R. 928, 1129) Respondent

Gibons told the detective that her father was

not home. (R. 928) Mrs. Gibons called next

to ask her daughter to pick her up at the

train station. (R. 1130-31, 1515-16)

Respondents Gibons and Wilson and

defendant St. Pierre then took the victims'

car and drove to the hardware store. (R.

1131) Respondent Wilson bought plastic bags,

plastic sheets, and tape to tie up the

bodies. (R. 1132) After a stop at the

liquor store, the three returned to. the

victims’ home and received a second call from

Mrs. Gibons. (R. 1132-33) Respondent Gibons

then left the house to pick up her mother.

(R. 1133, 1518) When respondent Gibons and

her mother were in the car together,

respondent Gibons asked if her mother would

like to go for a drive. (R. 1133, 1518) The

victim replied that she was hungry and would

like to go home. (R. 1133) She had had a

hard day at work. (R. 1133) Respondent

Gibons then took the victim to the house

where she knew respondent Wilson and

defendant St. Pierre were waiting to kill the

victim. (R. 1133, 1518, 1593)

Mrs. Gibons walked into the house

first. (R. 1134, 1201, 1203, 1330, 1519)

Defendant St. Pierre immediately came out

from the hallway and started hammering the

victim on the head. (R. 1134, 1201, 1203,

1330, 1519) Before dying from the multiple

hammer wounds to her head, the victim

screamed "Jackie, how could you do this to

me?" (R. 1134, 1203, 1288)

After driving respondent Gibons to

her office the next day, respondent Wilson

met with defendant St. Pierre. fm. 1207)

The two decided that they would have to

return to the victims' home and knock a hole

in the wall of the master bedroom to get the

victims’ bodies into the garage without being

seen. (R. 1207) Wilson and St. Pierre

knocked the hole in the bedroom wall through

to the garage, as planned, then pushed the

bodies through and put them into the trunk.

(R. 1147-48, 1208, 1331, 1523) Defendant St.

Pierre had earlier tried unsuccessfully to

get Mrs. Gibons' diamond ring off her finger.

(R. 1214) When Mrs. Gibons' body was

pushed into the’ garage, both respondent

Gibons and defendant St. Pierre noticed that

Mrs. Gibons' finger had been cut off. (R.

1151, 1214) Respondent Wilson told

respondent Gibons that he was going to

10

Arkansas to deliver the bodies. (Rm. LiS2Z;

1524)

Instead of going to Arkansas,

however, respondent Wilson drove to

California to locate his friend Craig

Rawlins. (R. 1041, 1331) Respondent Wilson

told Rawlins’~ while there that he- and

defendant St. Pierre had murdered the

victims. (R. 1048) Respondent Wilson said

that defendant St. Pierre had beaten them to

death with a hammer. (R. 1048) He said the

house was a mess. (R. 1049) There was blood

all over and they had to cut a hole out of

the carpet. (R. 1050) Defendant Wilson also

told Rawlins that he knocked a hole in the

wall that led into the garage so they enna

put the bodies into the trunk. (R. 1050) He

further stated that he pulled off the road

about 100 miles outside of Albuquerque, New

Mexico and dropped the bodies off next to a

11

tree. (R. 1051) Because his fingerprints

were on the plastic that the bodies were

wrapped in, respondent Wilson wanted to go

back to Albuquerque to burn the bodies. (R.

1052) Respondent Wilson also told Craig

Rawlins that respondent Gibons would. get

money from her parents' insurance company as

a result of the victims' death. (R. 1052)

On August te 1982, Detective

McLaughlin was assigned to visit the Gibons'

home because the victims had not been seen or

heard from in several days. (R. 900-901,

930) Detective McLaughlin entered the home

and immediately observed that the house was a

huge mess. (R. 931) Big spots in the carpet

had been cut out. In other places, blood

spots had been rubbed out. (R. 932) Blood

was found everywhere; in the bedroom,

hallway, foyer and kitchen. (R. 932-33, 937-

38) Even the ceiling had been spattered with

12

the victims' blood. (R. 933) Cleaning

fluids and blood-soaked cloths were found

throughout the house. (R. $32, 938, 944,

951) In the master bedroom Detective

McLaughlin saw the hole that had been punched

through the wall leading to the garage. (R.

940) Detective McLaughlin also found a belt

in the master bedroom that had defendant St.

Pierre's name and penitentiary number on it.

(R. 956)

Once he had had a look at the

inside of the Gibons' home, Detective

McLaughlin told his Superiors that he

suspected respondent Wilson was involved in

the crime. (R. 934) McLaughlin then went out

to look for respondent Wilson, but was unable

to locate him. (R. 957-59) Respondent

Gibons telephoned her house early the next

morning and told the police that something

tragic had happened and she wished to speak

na

to the officers. (R. 1531-32) She met two

police officers at a train station at 3:00

a.em., and was taken to the Skokie Police

Station. (R. 1532) At the station,

respondent Gibons was advised of her Miranda

rights and proceeded to give a formal

statement in the presence of an Assistant

State's Attorney describing the events which

occurred on the night of the murder. (R.

964, 966)

Defendant St. Pierre was arrested

on August 3, 1982, and after being advised of

his Miranda rights, defendant St. Pierre also

gave a formal statement in the presence of an

Assistant State's Attorney. (R. 1176-77)

Respondent Wilson was eventually located and

arrested in Phoenix, Arizona. (R. 988)

Skokie Police Officers McLaughlin and O'Keefe

accompanied respondent Wilson on his flight

from Phoenix to Chicago. (R. 1326-27)

14

Detective O'Keefe spoke with respondent

Wilson, and advised him of his’ Miranda

rights, after which respondent Wilson gave a

statement to the police officers. (R. 1328)

Prior to respondents' trial, each

respondent filed a written motion for

severance. (Re. 2750-51, 2757-61, 2762-64)

The trial judge stated that he had made a

careful in camera inspection of the

statements of the three defendants, had

studied the recent law regarding the subject,

and had come to the conclusion that

defendants’ motions for severance should be

denied. (R. 37, 45)

Respondent Wilson renewed his

motion for severance two more times before

trial began. (R. 154, 816) The trial judge

again stated that he had read the memorandum

of respondent Wilson's oral statement made on

the airplane, as well as the statements of

respondents Gibons and defendant St. Pierre.

(R. 817) The jv 4ge concluded that the three

statements were interlocking, and denied

respondent Wilson's motion. (R. 817)

During respondents’ trial, the

trial judge instructed the jury on numerous

occasions that a statement made by one

defendant referring to any other defendant

could not be considered by them against any

other defendant. (R. 1006, 1025, 1104-5,

1173, 1328, 1905, 1907) Before the jury

retired the judge again instructed them that

each defendant's statement could be used by

them as evidence against only the defendant

making the statement. (Re. 1104-5, 1173,

1328) Moreover, during closing argument, and

again during rebuttal, the Assistant State's

Attorney reminded the jury of their duty in

this regard. (R. 1786, 1875)

16

The Illinois Appellate Court, First

District, Fifth Division, reversed

respondents’ convictions and remanded the

cause for a new trial by concluding that the

trial court erroneously denied respondents'

motions for severance. The Appellate Court

determined that respondents' motions’ for

severance should have been granted because

the confessions of the co-defendants were not

interlocking. The Appellate Court further

held that respondents' motions for severance

should have been granted because of the

antagonistic mature of the co-defendants'

defenses. Specifically, the Appellate Court

held that respondent Wilson's confession was

devoid of any admissions that he aided or

abetted his co-defendants in the murders, and

that respondent Gibons did not admit in her

statement that she planned the murders of her

parents.

17

The Supreme Court of Illinois

denied the People's petition for leave to

appeal.

18

ARGUMENT

THE TRIAL COURT PROPERLY

DENIED RESPONDENTS ' MOTIONS

FOR SEVERANCE WHERE NO _ TRUE

CONFLICT EXISTED IN THE

SEVERAL DEFENSES, WHERE EACH

DEFENDANT CONFESSED TO THE

MURDERS AND EACH CONFESSION

INTERLOCKS WITH AND SUPPORTS

THE CONFESSIONS OF THE CO-

DEFENDANTS AND WHERE THE TRIAL

COURT INSTRUCTED THE JURY THAT

A DEFENDANT'S STATEMENT WAS

NOT TO BE CONSIDERED AS

EVIDENCE OF GUILT AGAINST A

CO-DEFENDANT.

This case presents important

federal constitutional issues which must be

resolved by this Court in order that justice

may be served. These issues were decided by

the Illinois Appellate Court in direct

conflict with guiding precedents from this

19

Court. Therefore, the acceptance of this

petition would afford the Court an

opportunity to clarify this area of the law.

The trial court here properly

denied respondents' motions for severance

where no true conflict existed in the several

defenses, where each defendant confessed to

the murders and each confession interlocks

with and supports the confessions of the co-

defendants, and where the trial court

instructed the jury that a defendant's

statement was not to be considered as

evidence of guilt against a co-defendant.

Disregarding the evidence in the case and

pertinent Illinois and United States Supreme

Court precedents, however, the Appellate

Court reversed respondents' convictions.

People v. Gibons and Wilson, Ill. App.

3d » 300 N.E.20 517 (list Dist., Sth Div.

No. 83-2694, October 24, 1986).

20

The Appellate Court erred in

holding that the trial court's denial of

respondents' motions for severance was

improper. The Appellate Court's finding that

Wilson's and Gibons' statements given to

police did not indicate that they planned or

were aware of the plot to kill the Gibons,

and that, therefore, the statements of the

three co-defendants could not be considered

"interlocking" is contrary to the facts

adduced in the record.

In Bruton v. United States, 391

U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476

(1968), this Court held that the admission in

a joint trial of a co-defendant's

extrajudicial confession which inculpates the

other defendant violates that defendant's

Sixth Amendment right to confront the

witnesses against him. 391 U.S. at 126.

Limiting instructions to the jury were found

21

aN

*%

to be an Weis: 8 substitute for the right

of cross-examination. Id. An excertion to

\ ;

Bruton was announced, however, in Parker v.

Randolph, 44 U.S. 62, 75 99 S. Ct. 2132, 60

L. Ed. 2d 713 (1979), when this Court held

that the admission of "interlocking

confessions," with proper cautionary

instructions that the confession of one

defendant cannot be considered as evidence of

the guilt of the other, did not offend

Bruton. The court's reasoning was that since

a defendant's own confession is probably the

most damaging evidence that can be admitted

against him, the right of cross-examination

is of far less importance to a defendant who

has confessed than to one who has

consistently maintained his innocence. 442

U.S. at 72, 73.

Even before Parker, the Illinois

Supreme Court held that there was no Bruton

22

violation where the complaining defendant

himself has made "similar inculpatory

admissions." People v. Bassett, 56 Ill. 2d

285, 295, 307 N.E.2d 359 (1974).

Furthermore, the rule governing interlocking

confessions does not require that they be

identical. People v. Sanders, 103 Ill. App.

3d 700, 706, 431 N.E.2d 1145 (lst Dist., 2nd

Div. 1982). To be considered "interlocking,"

the statements need only agree _ on such

crucial facts as time, location, felonious

activity, and awareness of the overall plan

Or scheme. People v. Sanford, 116 Ill. App.

3d 834, 841, 452 N.E.2d 710 (lst Dist., 5th

Div. 1983). The record in the instant case

shows that respondents' Gibons' and Wilson's

statements clearly establish that they both

intended to promote or facilitate defendant

St. Pierre in the commission of the offenses

and, therefore, the trial court's finding

that the co-defendants' statements were

interlocking is not against the manifest

weight of the evidence.

In the case at bar, each defendant

related to the police that respondent Gibons

and defendant St. Pierre were at the victims'

residence on the night of the murder and that

defendant St. Pierre killed Mr. Gibons with

a hammer. Each defendant stated that

respondent Wilson then came to the victims'

residence and helped the other two defendants

clean up the blood. Each defendant said that

Mr. Gibons' body was then wrapped in a

blanket and placed in the bedroom. All three

stated that respondent Gibons left ee up

her mother at the train station. All

explained how Mrs. Gibons was hammered to

death when she walked into her house, that

she was wrapped in blankets and placed in the

bedroom, and that the three then left the

victims' residence and went to a hotel.

24

Each went on to say that the day

after the murders, respondent Wilson picked

up respondent Gibons at her office and

returned to the victims' residence. Once

there, respondent Wilson and defendant St.

Pierre knocked a hole through the wall of the

bedroom to the garage so that the bodies

could be put into the trunk of the victims'

car. Finally, all three stated that they

then left the Gibons' residence in the

victims' car, and that respondent Wilson

dropped off respondent Gibons and defendant

St. Pierre aie drove on with the victims'

bodies in the trunk.

The statements are clearly in

agreement as to every crucial fact. Each

defendant made inculpatory admissions which

were Similar to the admissions made by the

other two defendants. The Appellate Court

held that respondent Wilson's statement was

43

devoid of any admissions that he aided or

abetted his co-defendants in the murders. A

careful examination of the record, however,

reveals that this holding is completely

erroneous. Detective O'Keefe testified at

trial that respondent Wilson told him that he

and the other co-defendants killed the

Gibons' with a hammer. (R. 1330)

The Appellate Court further

erroneously held that respondent Gibons'

statement was not "interlocking" with that of

her co-defendants in that she did not admit

she planned the murders of her parents. In

so holding, the Court mistakenly relied on

Lee v. Illinois, ous. P Be Ed. 2d

’ S. Ct. (46 CCH S. Ct. Bull. P.

B2680). Based on Lee, the Appellate Court

held that the discrepancies between

respondent Gibons and defendant St. Pierre's

confessions were critical with respect to

respondent Gibons' premeditation or intent to

kill her parents. In Lee, the defendant and

her co-defendant were charged - with the

murders of Lee's aunt and her friend. This

Court held that because Lee had not confessed

to a joint plan with her co-defendant to

murder her aunt, because Lee's statement did

not contain any admission of collusion to

kill her aunt's friend, and because of

discrepancies with respect to the two co-

defendant's premeditation, the two

confessions did not interlock and the co-

defendant's confession should not have been

admitted at Lee's trial. Lee v. Illinois,

U.S. ’ L. Ed. 2d ’ S. Ct.

(46 CCH S. Ct. Bull. P. B2680, B2696).

The facts in the instant case are

Clearly inapposite to those in Lee. Here, a

careful examination of respondent Gibons'

statement clearly shows that respondent

Gibons' every action preceeding the murders

was specifically intended to facilitate

respondent Wilson and defendant St. Pierre in

the commission of the crime. Respondent

Gibons’ stated that the day before’ the

murders, when respondent Wilson told her that

he needed money because her parents were

"going down tonight," she told him she would

get it for him. (R. 1110-1111) The next day,

when respondent Wilson told her that

defendant St. Pierre would commit the murders

for $300, respondent Gibons agreed to pay

him. (R. 1110-1113) Respondent Gibons met

with respondent Wilson and defendant St.

Pierre in an alley that day to discuss the

killing of her parents by defendant St.

Pierre. (R. 1117) Respondent Gibons stated

that respondent Wilson told her to open her

door at 6:00 p.m. that evening and defendant

St. Pierre would "do it." (R. 1119)

28

Respondent Gibons’ further’ stated

that when her doorbell rang at 6:01 p.m., she

let defendant St. Pierre in, introduced him

to her father, and walked into the living

room as defendant St. Pierre grabbed the

hammer. (R. 1121) Respondent Gibons never:

stated that she did not intend to let

defendant St. Pierre into the house. Her

statements clearly show an intent to promote

or facilitate defendant St. Pierre in the

commission of the offenses. This intent is

further shown by her statement that’ she

helped clean up the blood, and by “her

Statement that she picked up her mother at

the train station and brought her back home

where defendants St. Pierre and respondent

Wilson were waiting. (R. 1128, 1133)

The Apellate Court held that

respondent Gibons' statement was not

"interlocking" with that of her co-defendants

29

because in her statement, she said that she

did not believe respondent Wilson was serious

about killing her parents. The issue is

not, however, whether respondent Gibons'

statement establishes that she thought

respondent Wilson was serious. The issue is

whether respondent Gibons' statement

establishes that she intended to promote or

facilitate the commission of the offenses.

While respondent Gibons did state that at 1]

pem. on the day of the murders she did not

think respondent Wilson was serious, she did

not state that when her doorbell rang at 6:01

that evening, as planned, that she still

thought respondent Wilson was not’ serious.

To the contrary, Gibons stated that’ she

opened the door to let defendant St. Pierre

in, walked into the living room, and watched

defendant St. Pierre grab the hammer. She

further stated that she brought her mother

30

back to the house where the murderers were

wai.ang. These statements clearly establish

respondent Gibons' intent to promote or

facilitate the commission of the murders.

The trial court, therefore, correctly

concluded that the three defendants'

statements were interlocking and correctly

denied respondents' motions for severance and

the Appellate Court's reliance on Lee vv.

Illinois is misplaced.

In summary, the Illinois Appellate

Court has ignored United States Supreme Court

and Illinois case law which, under’ the

circumstances of this case, would dictate

that respondents’ motions for severance were

properly denied. Because the Appellate

Court's ruling in this case is inconsistent

with case law in this area, this decision

will establish an unwarranted precedent as to

when such motions should be granted. Absent

31

re

a reversal by this Court, this case will

stand as an incorrect statement of the law

and there will exist unwarranted confusion in

the state courts.

The People of the State of Illinois

respectfully urge this Court to rectify the

legal and logical errors made by the

Appellate Court in its holding, and to align

this case with proper authority as addressed

in this petition.

32

CONCLUSION

Wherefore, for all the foregoing

reasons - the Petitioner prays that this

Honorable Court grant the instant petition

for a writ of certiorari.

Respectfully submitted,

NEIL F. HARTIGAN,

Attorney General,

State of Illinois

100 West Randolph St.

12th Floor

Chicago, Illinois

_60601

Attorney for Respondent.

RICHARD M. DALEY

State's Attorney

Cook County, Illinois,

500 Richard J. Daley Center

Chicago, Illinois 60602

THOMAS V. GAINER, JR.,”*

MARY E. SHIELDS,

Assistant State's Attorneys

Of Counsel.

*Counsel of Record.

33

APPENDIX

Fifth Division

83-2694 October 24,1986

PEOPLE OF THE STATE OF ILLINOIS,)APPEAL FROM

) THE CIRCUIT

Plaintiff-Appellee, )COURT OF

)}COOK COUNTY

vs. )

) 86-146

JACQUELINE GIBONS and )

BARRY WILSON, ) Honorable

) LEONARD R.

o) GRAZIA,

) JUDGE

) PRESIDING

Defendants-Appellants

JUSTICE MURRAY delivered the

opinion of the court:

Following a joint jury trial,

defendants Jacqueline Gibons, Barry Wilson

and Robert St. Pierre were found guilty of

the murders of Benjamin and Sybil Gibons,

defendant Gibons adoptive parents, two counts

of conspiracy to commit murder, two counts of

armed robbery and two counts of concealment

of a homicidal death. (Ill. Rev. Stat. 1983,

ch. 38, pars. 9-liaj)(1), (2), (3), 8-2(a),

18-2(a), 9-3.1(a).) Gibons and Wilson were

sentenced to natural life imprisonment for

the murders, two extended terms of 60 years,

to be served consecutively, for the armed

robberies of the victims, two concurrent

terms of 7 years for conspiracy to commit

murder and two concurrent terms of 5 years

for concealment of the homicidal deaths of

the victims. St. Pierre was sentenced to

death; the court entered judgments but no

sentences on the other counts. St. Pierre is

not a party to this appeal.

On appeal, Gibons contends that:

(1) the trial court erred in denying her

petition for severance, in violation of her

rights to a fair trial, to confront witnesses

against her and to present evidence of her

defense; (2) the State failed to prove her

guilty beyond a reasonable doubt of the armed

robbery of Sybil Gibons; (3) the "death

qualification" of prospective jurors during

voire dire resulted in a biased jury favoring

the prosecution, in violation of her right to

an impartial jury representing a fair cross-

section of the community; and (4) the court

erred in imposing extended terms of 60 years

for armed robbery. Wilson contends that: (1)

the trial court erred in denying his motion

for severance, in violation of his right to a

fair trial; (2) the court improperly

permitted the State to introduce evidence

concerning a burglary of the Gibons'

residence; (3) the State failed to prove him

guilty beyond a reasonable doubt of the armed

robberies of both victims; and (4) his

sentences were excessive. Both defencants

also contend that the court’ erred in

sentencing them for the inchoate offense of

“conspiracy to commit murder. For the reasons

set foth below, we reverse Gibons~ and

Wilson's convictions and remand their cases

for new, and separate, trials.

The record reveals that on July 29,

1982, Benjamin and Sybil Gibons, both

approximately 62 years of age, were murdered

in their home in Skokie, Illinois. On August

10, 1982, their bodies were found in a remote

area of Albuquercue, New Mexico. Both had

been beaten to death and the tip of one of

Mrs. Gibons' fingers appeared to have been

cut off.

Testimony at trial disclosed that

on July 27, 1982, Detective Greg McLaughlin

of the Skokie police department was assigned

to investigate a burglary of the Gibons'

residence. During his conversation with the

Gibons, McLaughlin learned that defendant

Gibons had told her parents that Wilson

telephoned her earlier that day, told her he

had fallen through a window of the house and

that Gibons should "clean up the mess" before

her parents discovered it. When Mr. Gibons

later failed to appear before a judge the

next day concerning the complaint he _ had

signed, McLaughlin placed a call to. the

Gibons' residence on July 29, defendant

Gibons answered and she told him her father

was not at home. McLaughlin called again on

July 31 and received the same response from

Gibons.

On August 2, Harriet Metrick, Ms.

Gibons' sister, called the police because she

had been told by the senior Gibons' employers

that they had not shown up for work. Police

officers and Ms. Metrick went to the Gibons'

home and entered the house when no_ one

answered the doorbell. Detective McLaughlin

arrived shortly thereafter. He found holes

cut in the living room carpet and sofa,

cleaning fluids and bloodsoaked rags_~ and

towels scattered about, bloodsoaked rags and

towels scattered about, blood splattered

throughout the kitchen, living room and

master bedroom and a large hole broken

through the wall between the bedroom closet

and the garage. Mr. Gibons' wallet was

discovered in the kitchen with a traffic

ticket in it describing a 1982 #£=Buick

automobile. A belt was found in the bedroom

with St. Pierre's name and priscn number on

st. Further inspection of the garage

revealed garbage bags containing bloodstained

carpeting, gloves, clothing, and a hammer

covered with masonry dust. The automobile

was not in the garage, nor were the Gibons on

the premises.

McLaughlin further testified he

went to the police station to make out a

report, then unsuccessfully tried to locate

Wilson and Craig Rawlins, a friend of

Wilson's. On August 3, McLaughlin met with

Gibons; she had been brought to the police

station at her own request. At that time,

Gibons told McLaughlin how her parents had

been killed, implicated Wilson and _ St.

Pierre,! told McLaughlin that Wilson was in

Los Angeles, California with Craig Rawlings,

and gave him St. Pierre's address.

Gibons further related, in a formal

written statement, that six months prior to

the murders Wilson "started hinting" that he

was "really thinking of killing her parents"

1 Gibons also implicated Andrea Markson and

Sandra Zabrqewski, two girls she had known at

the Price Group Home, a girls’ “transitional

home," where Gibons had lived prior to moving

home with her parents. Their cases were

severed from Gibons', Wilson's and St.

Pierre's.

;

and that he later told her he had bought

sleeping pills and a gun with a silencer.

During that time, Gibons stated there was

never any discussion about her paying Wilson

to kill her parents and that she did not

think he was’ serious "until it really

happenec." On July 28, Wilson called Gibons,

she told him her parents were considering

pressing charges against him, and he told her

he needed some noney because her parents were

"going down" that evening. The conversation

ended when Gibons told Wilson she did not

have any money and that she would have to get

it the next day. On July 29, Wilson came to

Gibons' office, they met with St. Pierre in

an alley, and Wilson told her St. Pierre

would kill her parents for $300. Although

she stated she was in shock and thought that

"it was just a game," she agreed to pay St.

Pierre. Wilson then told Gibons to open the

door of her home later that evening and St.

Pierre “would come and do it," and he would

"come a little later." At approximately 6

p.m., St. Pierre arrived at the Gibons' home,

Gibons and her father admitted him, she went

into the living room, and St. Pierre, having

picked up a hammer which was lying on a chair

in the hallway, followed Mr. Gibons into the

kitchen where he killed him by beating him to

death with the hammer. Gibons stated that

after she heard the “hammering,” she opened

the front door and Wilson came in. He and

St. Pierre wrapped Mr. Gibons' body in a

blanket and placed it in the master bedroom.

Prior to placing the body in the bedroom,

Wilson came into the bedroom and gave Gibons

her father's wallet from which she took all

of his credit cards.

Thereafter, at approximately 7

p.m., Detective McLaughlin called to speak to

Gibons' parents and she told him they were

not at home. Mr. Gibons called 10 minutes

later and asked defendant Gibons to pick her

up from the train station. Instead of doing

so immediately, the defendants drove to a

hardware store where Wilson purchased some

plastic bags, a roll of tape and sheets of

plastic which he said were for tieing up Ms.

Gibons' body. When they returned to the

Gibons' house, Mrs. Gibons again called to

ask defendant Gibons to pick her up. Gibons

then left to pick up her mother from the

train station. After meeting her, defendant

Gibons suggested they go for a drive before

going home, her mother declined and Gibons

drove home. When Mrs. Gibons entered the

house, St. Pierre attacked her with the

hammer and beat her to death. Wilson and St.

Pierre then wrapped her body in a blanket and

Plastic and placed it in the bedrocm. After

10

they cleaned up the house, Wilson drove

Gibons and St. Pierre to a hotel, left them

there and drove away. During the drive, St.

Pierre stated that “he did it (the murders)

for them" and “they should tthank him."

Gibons responded that she agreed with him.

The next day defendants returned to

the house, Wilson and St. Pierre knocked a

hole through *he wall of the bedroom to the

garage, Gibons helped them push the victims'

bodies through the hole, and Wilson and St.

Pierre placed them in the trunk of the

victims’ car. Defendant then drove off in

the car. After dropping St. Pierre off at

his home, Wilson and Gibons drove around for

awhile and discussed "how crazy St. Pierre

was" and the fact that Mrs. Gibons' finger

had been sliced “because of the ring and who

did it." At one point, Wilson stopped at a

hotel and showed the bodies to some "black

ll

swe

dude." He dropped Gibons off downtown around

midnight and told her he was going to take

the bodies to Arkansas to be buried by his

cousin.

On August 3, Assistant State's

Attorney James Lieberman took ae statement

from St. Pierre. St. Pierre stated that he

met Wilson in mid-July 1982. Toward the end

of July Wilson told him he had a job for him,

that Gibons wanted her parents killed and

that St. Pierre would get $1,000 to $10,000

if he killed them. After this conversation,

they went to the Gibons' home and Wilson

broke in through aé_e window. They were

"suppose to get money," but Wilson only came

out of the house with some food. On July 29,

he met with Wilson and Gibons in an icin

Wilson told Gibons that St. Pierre wanted her

to tell him that she wanted her parents

killed, and Gibons nodded and said, "Yes."

iz

They then planned “how they would do it,"

Wilson and Gibons doing most of the talking

and deciding they would use a hammer. After

getting $35 from Gibons, Wilson and St.

Pierre had lunch and then drank a 12-pack of

beer. Later, they went to a bar and had

another drink before taking a train out to

Skokie. At approximately 5 p.m., they went

to a restaurant, Wilson gave St. Pierre the

restaurant's telephone number, and St. Pierre

left him there and went to the Gibons' home.

St. Pierre further stated that when

he arrived at the Gibons' home, defendant

Gibons gave him a hammer and asked him to put

some gloves on. Refusing to put the gloves

on, he followed Mr. Gibons into the kitchen

and killed him with the hammer. He then gave

Gibons the restaurant's telephone number and

she called Wilson who arrived shortly

thereafter. After wrapping up Mr. Gibons'

13

body, they cleaned up the kitchen anc had a

drink. Gibons then left to pick up her

mother. Subsequently, while waiting for Ms.

Gibons to arrive, St. Pierre stated that he

and Wilson were drinking in the basement, he

took a $20 bill from Mr. Gibons' walled which

he had taken from the victim, and Wilson took

the rest. Later, Wilson gave him another $20

bill. St. Pierre also stated that when

passing Mrs. Gibons' body through the hole in

the closet wall he noticed that someone had

out her finger off apparently for the purpose

of removing a diamond ring from her finger

which he earlier had unsuccessfully tried to

remove after killing her. St. Pierre's

further account of the events following the

murders until the time Wilson left Illinois

were Similar to those of his codefendants.

McLaughlin also testified that the

police learned that instead of going to

14

Arkansas, Wilson drove to Los Angeles to see

Craig Rawlins. When Wilson arrived at

Rawlins' home, he called Gibons and asked her

to send him some money so he could return to

Chicago, which she did. Thereafter, the

police traced Wilson and Rawlings to

Rawlings’ father's home in Phoenix, ae loonie

On August 5, McLaughlin and Sergeant Phillip

O'Keefe flew to Phoenix to speak with

Rawlings who was in police custody. Rawlins

told McLaughlin that while he and Wilson were

in Phoenix, Wilson told him that “he and St.

Pierre had killed the Gibons" -- "St. Pierre

killed the Gibons with a hammer," that

defendant Gibons called Wilson to come over

after Mr. Gibons was killed, that she later

picked up Mrs. Gibons from the train Station

and St. Pierre killed her after she entered

the house, that he helped clean up the house,

that he helped knock a hole in the closet

15

wall and push the victims' bodies through it,

and that he helped put the bodies in the

trunk of the victims' car. Wilson also told

Rawlins he had wanted to bring the bodies to

Los Angeles to show him, but instead he

"dropped" them off near Albuquerque, Mexico.

Wilson further told Rawlins that "Jackie

would get the insurance money, but did not

say he (Wilson) would."

McLaughlin also interviewed Wilson

who had been taken into custody also with

Rawlins. Wilson told McLaughlin he would

help them find the victims' bodies and said

they were in Missouri. When McLaughlin

stated the police knew Wilson had not been in

Missouri, Wilson said he could not remember

where he had dropped them off because he had

been drunk during his drive to Los Angeles.

Subsequently, the officers returned to

Chicago with Wilson. During the _ flight,

16

Wilson made an oral statement to Sergeant

O'Keefe, telling him he was not present when

St. Pierre killed Mr. Gibons, he went to the

house after defendant Gibons called him at a

restaurant, he saw Mr. Gibons lying on the

floor of the kitchen, he helped St. Pierre

wrap up the body and carry it to the bedroom,

and he helped clean up the _ kitchen. He

further told O'Keefe he was not present when

St. Pierre killed Mrs. Gibons, but when told

his codefendants stated he was present, he

told O'Keefe he was in the hallway when she

was killed. Wilson also stated he helped

wrap up Mrs. Gibons' body, knock a hole in

the garage wall and put the victims’ bodies

in the car. After dropping off defendants

Gibons and St. Pierre, he drove to

California.

Additionally, Wilson stated he and

St. Pierre had gone to the Gibons' home

17

looking for defendant Gibons prior to the

murders, had fallen through a window and had

taken some food from the refrigerator. He

denied, however, that he had. told Rolings he

left the bodies in New Mexico, stating he did

not remember where he left them. On cross-

examination, O'Keefe stated that Wilson never

said he conspired with his codefendants to

kill the Gibons and he never asked Wilson

about such a conspiracy. When O'Keefe did

ask Wilson why he did not leave the house

when he arrived and saw Mr. Gibons' body

lying on the kitchen floor, Wilson replied,

"I don't know why, I just. didn't." He

further commented to O'Keefe that St. Pierre

was crazy and had just gotten out of jail.

Prior to trial, written motions

requesting a severance were filed by each

defendant. After examining the motions, the

out-of-court written statements of Gibons and

18

= - : a | |

4 ; 7

F ; |

a 7 ng |

— ;

|

re a | f

$

St. Pierre and a summary of Wilson's oral

statement, as well as hearing aroauments by

counsel, the trial court denied the motions

based on its determination that the

statements were substantially the same. At

trial, both Gibons and Wilson renewed their

motions for severance at various times, but

they again were denied. Gibons testified on

her own behalf, but neither Wilson nor St.

Pierre.took the stand. Following trial, the

jury found the defendants guilty on all

counts, and the State announced that it would

seek the death penalty against them. St.

Pierre elected to have the jury decide the

issue and, following a hearing, it returned a

verdict sentencing him to death. Gibons and

Wilson waived their right to a jury and,

following a bench hearing, the court found

they were both’ eligible _ for the death

penalty. After hearing further evidence and

19

arguments in aggravation and mitigation, the

court sentencd them to natural life

imprisonment for the murders. Gibons’' and

Wilson were sentenced on the remaining counts

as previously mentioned above. Their motions

for a new trial were denied.

I.

We first address Wilson's argument

that the trial court's denial of his motion

for severance deprived him of a fair trial.

Generally,~"defendants jointly indicted are

to be jointly tried unless fairness to one of

the defendants requires a separate trial to

avoid prejudice." (Emphasis added.) (People

v. Bean (1984), 109 I11.2d 80, 92, 485 N.E.2d

349; People v. Daugherty, (1984), 102 I11.2d

533, 541, 468 N.E.2d 969, quoting People v.

Lee, (1981), $7 I11.2d 182, 187, 429 N.E.2d

461.) A motion for severance is to be filed

prior to commencement of trial (Ill. Rev.

Stat. 1983, ch. 38, par. 114-8) and must

state how the defendant will be prejudiced by

a joint trial; mere apprehensions are not

enough (People v. Daugherty, (1984), 102 I11l.

2d 533, 468 N.E.2d 969.) The trial court's

decision will not be disturbed absent an

abuse of discretion. People v. Lee, (1981),

87 Ill. 2d 182, 429 N.E.2d 461.

The Illinois courts recognize two

separate grounds for seveance. (People v.

Olinger, (1986), 112 Ill. 2d 324, 493 N.E.2d

579.) A defendant may be prejudiced when he

is implicated in the hearsay admissions of a

codefendant who does not testify, thereby

depriving the defendant of his sixth

amendment right of confrontation (the Bruton

rule). (Bruton v. United States (1968), 391

U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620.)

This form of prejudice may be cured by

at

granting a severance or by removing all

references to the moving defendant from his

codefendants' statements. (People Vv.

Olinger, (1986), 112 Ill. 2d 324, 493 N.E.2d

579.) An exception to this rule exists where

"the defendant himself has confessed and his

confession interlocks with and supports the

confession of his codefendant." (Parker v.

Randolph, (1979), 442 U.S. 62, 64, 60 L.Ed.2d

713, 718, 99 S.Ct. 2132, 2135.) In that

event, severance is not required, the

confessions are admissible and references to

the defendant need not be removed; however,

the court must give the jury cautionary

instructions that it is to consider’ the

statement of each defendant only as evidence

agsinst the maker. (People _v. Davis,

(1983), 97 Ill. 2d 1, 452 N.E.2d 525; Parker

Vv. Randolph, (1979), 442 U.S. 62, 60 L.Ed.1d

713, 99 S. Ct. 2132.)

22

1S second ground for severance

arises when the various defendants' defenses

are sO antagonistic that one codefendant

cannot receive a fair trial when jointly

tried. (People v. Olinger (1986), 112 I11.2d

324, 493 N.E.2d 579; People v. Bean (1985),

109 Ill. 2d 80, 485 N.E.2d 349.) Nothing

short of severance of the trial of the

prejudiced defendant cures this form of

prejudice. People v. Olinger (1986), 112

I11.2d 324, 493 N.E.2d 579.

In the instant case, Wilson alleges

both forms of prejudice. First, he contends

that the trial court erred in its

determination that his confession was

substantially the same as those of his

codefendants, and thus interlocking as_ the

State contends, thereby falling under’ the

exception to the Bruton rule. We agree.

Although the rule governing interlocking

confessions does not require they be

identical (People v. Sanders (1982), 103 Ill.

App. 3d 700, 431 N.E.2d 1145, cert denied

(1982), 459 U.S. 871), they must agree on

such crucial facts of time, location,

felonious activity and awareness’. of the

overall plan or scheme. People v. Sanford,

(1983), 116 Ill. App. 3d 834, 452 N.E.2d 710.

Briefly, Wilson's’ oral statement

disclosed he was present at the Gibons' home

after receiving a telephone call from

defendant Gibons and subsequent to Mr.

Gibons' murder; he was present when Mrs.

Gibons was killed; he helped wrap up the

bodies, clean the house, knock a hole in the

garage wall and put the victims' bodies into

the trunk of the Gibons' car; and later

dropped off his codefendants and left

Illinois to dispose of the bodies.

Clearly, Wilson's confession’ was

devoid of any admissions, similar to those

asserted by his codefendants in their

statements, that he participated in a

conspiracy to murder the Gibons, that he

aided or abetted his codefendants in the

murders, that he robbed the victims or that

he paid St. Pierre to commit the murders.

Therefore, although his statement was similar

to his codefendants with respect to the time

and location of the crime, it only partially

supported the felonious activity and it was

crucially dissimilar concerning his alleged

awareness of an overall plan or scheme to

commit the murders and the subsequent

robberies. At this stage, the only evidence

that he participated in these acts was

contained in Gibons' and St. Pierre's

confessions, thus adding critical weight to

the State's case against Wilson which the

25

State otherwise could not have obtained from

him. (See Parker v. Randolph, (1979), 442

U.S. 62, 60 L.Ed.2d 713, 99 S.Ct. 2132.) We

further note that although Wilson had the

opportunity to cross-examine Gibons, he did

not have the same opportunity to confront St.

Pierre who chose not to testify. On this

basis, the likelihood of prejudice to Wilson

was manifest, and the trial court therefore

should either have granted the severance

motion or removed all references to Wilson

from St. Pierre's statement. Since it did

neither, and more weight was likely given to

Gibons' testimony as a result of the improper

admission of St. Pierre's statement, the

court's denial of Wilson's severance motion

on this ground of prejudice was reversible

error.

We further note that even if the

trial court had ordered a redaction of St.

26

Pierre's statement or the State had agreed

not to use his statement at trial, denial of

Wilson's severance motion would still have

been improper in view of the antagonistic

nature of Wilson's defense and those of his

codefendants. In People v. Daugherty (1984),

102 Ill. 2d 533, 543, 468 N.E.2d 969, where

each defendant made a statement to the police

exculpating himself and inculpatina the

other, $< was held that although a

stipulation by the State not to use either of

the defendants' statements at trial would

eliminate the source of any problem under the

confrontation clause, it would do nothing "to

alleviate the codefendants' concerns’ about

their antagonistic lines of defense."

Here, the State argues that no

"true conflict" among the defendants'

defenses existed and, arguendo, that = any

possible prejudice was cured by the court's

27

cautionary instructions to the jury that the

statement of each defendant was to. be

considered only as evidence against’ the

maker. (See People v. Davis, (1983), 97

T11.2d 1, 452 N.E.2d 525.) We disagree.

Notwithstanding Wilson's stated

defense that he would rely on the State's

inability to prove him guilty, Wilson

contends that his severance motions contained

facts, although "admittedly rehetorical,"

specific enough to show an antagonistic

defense of those of his codefendants, i.e.,

that contrary to his codefendants assertions,

"he did not kill the Gibonses (sic), that he

did not intend to kill them, and that at most

he was guilty of attempting to conceal their

bodies." More specifically, he stated in his

initial motion for severance that the State

would seek to introduce Gibons' and St.

Pierre's written statements and that: one of

28

the State's theories would be that Wilson was

guilty of the murder of both victims "because

he is accountable for the conduct of Robert

St. Pierre and/or Jacqueline Gibons because

he, Barry Wilson, solicited Robert St. Pierre

to commit this crime and he, Barry Wilson,

made arrangements through Jacaueline Gibons

to pay money to Robert St. Pierre for killing

Benjamin Gibons and Sybil Gibons."

Wilson's motion further alleges

that defendant Gibons' confession would

indicate that he called her asking for money

on July 28 because her parents were to be

killed that night; that he discussed plans to

kill her parents with Gibons on two prior

occasions; that he had produced sleeping

pills and a gun to kill her parents; that he

said "Bob would kill her parents" for $300;

that prior to the murders he was prepared to

assist in cleaning up the house and disposing

29

the bodies; that he was "at her front door

immediately after her father was’ killed,

inferring that he, Barry Wilson, was there

while her father was being killed * * *

(which was) * * * directly contrary to (his)

* * * statement to the police", that he gave

her Benjamin Gibons' wallet after St. Pierre

killed him which “could be used to prove that

a felony murder occurred and therfore, (he,)

* %* %* who had the proceeds of the armed

robbery was therefore, guilty of the murder

committed in the couse of the armed robbery";

that he aided in the commission of the murder

of Sybil Gibons; and that he wanted $1,000.

The motion also alleged that St.

Pierre's confession would indicate that

Wilson proposed the killing of the Gibons for

$1,000 to $10,000; that Wilson “took = an

integral part in planning the method and

means of committing the murders"; that Wilson

7} — ee err eee

, .

helped with the plans to kill Sybil Gibons;

that Wilson paid him $100 for the murders;

and that Wilson or Gibons stole a diamond

ring from the finger of Sybil Gibons.

Wilson further stated in his

supplemental motion for severance that he

would "admit to his limited participation in

the events that led up to his arrest," but

that he would be prejudiced if Gibons

testified at trial “because she would testify

that he compelled her to commit the acts

which caused her to be charged with the

murders of the victims, which would compel

him to testify that Gibons requested him to

provide information and assistance in

disposing of her parents"; that Gibons and

St. Pierre had made prior plans to kill

Gibons parents; that he never’ threatened

defendant Gibons at any time; and that he

would “accuse Gibons of soliciting for the

-

31

murder of her parents." In Wilson's third

severance motion at the close of voire dire,

but before takincae evidence, he alleged that

Gibons' counsel clearly indicated that Gibons

would testify at trial and that she would

state he compelled her to perform the acts

which formed the basis of the charges against

her.

As our supreme court’ stated in

People v. Daughtery (1984), 102 I11.2d 533,

544, 468 N.E.2d 969,

"(w)hen codefendants have each made

statements implicating the other

but professing their own innocence,

it is almost inevitable that their

lines of defense at trial will

become inconsistent and

antagonistic and severance is

necessary to forestall that result

and ensure a fair trial. In such

case, the hostility between’ the

codefendants is likely to surface

at trial whether or not they eaci

take the stand themselves. An

unacceptable spectacle occurs’ in

which the trial becomes as much a

contest between the defendants as

it is a contest between either

defendant and the prosecution."

In the instant case, we believe

Wilson's first severance motion indicated a

likelihood of prejudice and set forth with

specificity the antagonistic lines of

Gefenses of his codefendants. Based on their

statements, Gibons and St. Pierre accused

Wilson of conspiring with them to kill the

Gibons, aiding and abetting them in the

murders and robbing the victims. Both Gibons

rand St. Pierre also specifically pointed to

Wilson as the initiator of the conspiracy and

the real perpetrator of the crimes.

Conversely,. Wilson in effect denied all

allegations except for his being present when

33

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Mrs. Gibons was killed and in helping to

conceal the deaths of the victims. We thus

have the classic Daugherty situation in which

codefendants point a finger at each other as

the real perpetrator of the offenses. On the

face of his motion, and in conjunction with

his codefendants' statements, therefore, the

case presented was Wilson's’ position of

extremely limited participation in the crime

in opposition to his codefendants'

accusations to the contrary. The trial thus

became more of a contest between Wilson and

his codefendants than the People _ and the

defendants. Wilson therefore was unfairly

placed in a position of having to defend

against ®\.ee accusers--the State and his two

codefendants.

Based on Wilson's demonstration of

antagonistic defenses, nothing short of his

severance from the trial of his codefendants

34

was required. (See People v. Olinger (1986),

112 111.2d 324, 493 N.E.2d 579.) The trial

court therefore erred in denying his

severance motion. Additionally, since the

court has a continuning duty at all stages of

the proceedings to grant a severance when

prejudice appears (People v. Murphy, (1981),

92 41%. App. 3d 606, 417 N.E.2d 759), we

further find that it was incumbent on the

court to grant Wilson a severance at the time

of hearing on his third motion when Gibons'

counsel stated she would testify and would

present her lack of intent defense.

Thereafter, having failed to do so, the court

certainly should have granted a severance of

opening statements when St. Pierre's counsel

stated St. Pierre's defense would be that

Wilson and Gibons exploited him, getting him

drunk so they could manipulate him into

committing the murders.

a2

In accordance with the above, we

hold that the trial court's denial of

Wilson's motions on both grounds for

severance resulted in substantial prejudice

to him and constituted reversible error.

Wilson's convictions are therefore reversed

and the cause remanded for a new, and

separate, trial. In light of our disposition

on this issue, we do not address Wilson's

remaining arguments on appeal.

II.

.. We next address Gibons' argument

that the trial court's denial of her

severance petition violated her rights to a

fair trial, to confront witnesses against her

and to present evidence in her defense.

Gibons, like Wilson, alleges both forms of

prejudice set forth in part I of this

opinion. Initially, she argues that’ the

trial court erred in denying her petition for

severance based on its determination that her

confession was substantially the same or

interlocking (Parker v. Randolph, (1979), 442

U.S. 62, 60 L.Ed.2d 713, 99 S.Ct. 2132) with

those of her codefendants and, therefore,

fell under the exception to the Bruton rule

(Bruton v. United States (1968), 391 U.S.

123, 20 L.Ed.2d 476, 88 S.Ct. 1620). We

agree.

Under the circumstances, we believe

the situation presnted here is analogous to

the one in the recent case of Lee v. Illinois

(1986), U.S. ’ L.Ed.2d ,

S.Ct. __ «(46 CCH S. Ct. Bull. P. B2680).

There, defendant Lee and her codefendant were

charged with murdering iee's aunt and her

friend. The defendants were tried jointly in

a bench trial at which neither defendant

testified. The trial judge specificaly

37

relied on Lee's codefendant's confession and

rejected her assertions that she had not

participated in the murder of her aunt's

friend and that she had acted either in self-

defense or under intense and sudden passion

of killing her. aunt. This court, in

affirmina the trial court, conceded that the

trial court considered the codefendant's

confession as substantive evidence in findina

Lee guilty, but held that her codefendant's

was reliable@ and, moreover, interlocked with

2Lee's codefendant's confession was

categorized as falling under an exception to

the hearsay rule, i.e., a declaration against

penal interest, which the United States

Supreme Court subsequently rejected as a

basis for determining the reliability of a

confession of a codefendant inculpatina

another defendant where the defendant's sixth

amendment right to confrontation of witnesses

against him is at issue. U.S. P

’ L.Ed.2d ’ ’ S.Ct.

38

Lee's and thus did not fall within the rule

of Bruton. (People v. Lee, (1984), 129 Ill.

App. 3d 1167, 491 N.E.2d 1391.) In reversing

this court, the United State's Supreme Court

stated:

ad ¢ - ® * * portions of the

codefendant's purportedly inter-

locking statement which bear to any

significant degree on the

defendant's participation in_ the

crime are not thoroughly

substantiated by the defendant's

own confession, the admission of

the statement poses too serious a

threat to the accuracy of the

verdict to be countenanced by the

Sixth Amendment. In other words,

when the discrepancies between the

statements are not insignificant,

the codefendant's confession _ may

not be admitted." (Emphasis

added.) eS. ’ ce

L.Ed.2d : ; De ,

(46 CCH S§&. ct. Bull. P.

B2680, B2696.)

The Court found that Lee had not confessed to

a joint plan with her codefendant to murder

her aunt, nor did her statement contain any

admission of collusion to kill her aunt's

friend. The court also emphasized that the

discrepancies between the two confessions

were critical with respect to the couple's

premeditation or intent to kill the women.

For example, Lee's codefendant stated they

"had thought to put on gloves" prior to the

killings, whereas Lee stated they put on

gloves only to dispose of the bodies. The

court stated that these discrepancies went to

the very issue in dispute: the roles played

in the killing of the friend of Lee's aunt

and the question of premeditation in the

murder of her aunt.

Here, Gibons does not argue that

her statement did not interlock with Wilson's

40

but instead points to several statements °

contained in St. Pierre's confession which

she contends were crucially dissimilar from

her confession. Specifically, she complains

that: St. Pierre stated that Wilson told him

that "Jackie wanted this (the murders) done"

and that in response "Jackie nodded her head

and said ‘yeah, she wanted it done'"; that

St. Pierre stated they all planned how the

murders would be done, with Gibsons’ and

Wilson doing most of the talking and saying

they were going to use a hammer; and St.

Pierre's statement that Gibons gave him the

hammer used to kill the victims and that she

asked him to put some gloves on.

We note that although Gibons stated

she met with Wilson and St. Pierre, agreed to

pay St. Pierre $300 to murder her parents and

she admitted to being told by Wilson of a

plan--when to expect Wilson and St. Pierre at

4]

her home--she "thought it was only a game."

Like the situtation in Lee, Gibons did not

admit that she planned the murders of her

parents. In addition, Gibons' and St.

Pierre's statements diverge with respect to

the factual circumstances relevant to Gibons

premeditation or intent to kill her parents.

For example, St. Pierre stated that Gibons

helped decide what weapon would be used to

kill her parents, that she handed him the

hammer used in the murders, and that she told

him to put on some gloves, whereas Gibons did

not mention any decision concerning’ the

weapon to be used, she testified that St.

Pierre picked the hammer up from a chair, and

she did not say anything about wearing

gloves. Based on these discrepancies,

clearly Gibons' case should have been severed

from St. Pierre's or the court should have

removed all references to Gibons from St.

42

Pierre's statement in light of the fact that

Gibons did not have the opportunity to

confront St. Pierre. Accordingly, we hold

that the trial court erred in denying Gibons'

severance motion on this ground of prejudice.

We further find that the court

initially correctly denied Gibons' severance

petition based on the ground of antagonistic

defenses. Gibsons' petition stated, in

pertinent part, as follows:

"That the out-of-court statements

of WILSON and ST. PIERRE not only

attempt to mitigate their own

involvement in these homicides but

also attempt to place max imum

responsibility on the Petitioner.

(I)t is further reasonable to

believe that the defenses that will

be invoked by both, will be

43

antagonistic to the defense of

Petitioner. This antagonism

becomes especially critical in view

of the fact that his (sic) case

falls within the purview of the

Death Penalty Statute where all

— parties may feel compelled to

mitigate their involvement in an

attempt to preclude imposition of

the death penalty. * * *,"

Gibons' petition clearly failed to state with

specificity what her codefendants' defenses

would be and how she would be prejudiced

thereby; her petition is a recitation of mere

apprehensions. See People v. Daugherty

(1984), 102 Ill. 2d 533, 468 N.E.2d 969.

On the other hand, we hold that the

court erred in denying her a severance at the

time of the hearing on Wilson's’ third

severance motion and after opening

statements. At the hearing on Wilson's third

motion, as stated in part I of this opinion,

44

it became clear that Gibons' defense would be

antagonistic to Wilson's. Even though the

court failed to grant a severance at that

time, it had the authority to, and should

have done so, upon Gibons' request after

opening statements when it also became clear

that St. Pierre's defense similarly would be

antagonistic to hers. Specifically, St.

Pierre's defense similarly would be

antagonistic to hers. Specifically, St.

Pierre's counsel stated that his defense

would be that Gibons and Wilson exploited

him, getting him drunk so they could

manipulate him into committing the murders.

This was contrary to Gibon's defense that she

lacked the requisite intent to aid or abet

her codefendants in the crimes. Nothing

short of severance of her trial from her

codefendan.s could have cured such prejudice.

(See People v. Olinger (1986), 112 Ill. 2d

45

324, 493 N.E.2d 579.) We find that the trial

court therefore erred in denying Gibons' a

severance at these stages of the proceedings

based on the ground of antagonistic defenses.

In light of the above, we hold that

the denial of Gibons'* motions on both grounds

for severance resulted in substantial

prejudice to her and constituted reversible

error. Gibons' convictions are _ therefore

reversed and the cause remanded for a new,

and- separate, trial. Because of our

disposition on this issue, we do not address

Gibons' remaining arguments on appeal.

Finally, we believe that the

evidence at trial was sufficient for the

trier of fact to conclude that defendants

were guilty beyond a reasonable doubt. This

does not mean we are making a finding as to

defendants’ guilt or innocence which would be

binding on retrial, but rather our

46

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consideration of the sufficiency of the

evidence admitted at trial will remove the

risk of subjecting defendants to double

jeopardy. See People v. Taylor (1979), 76

Ill. 2d 289, 391 N.E.2d 366.

For the foregoing reasons,

defendants Gibons' and Wilson's’ convictions

are reversed and their causes remanded for

new, and separate, trials.

%,

—

CONVICTIONS REVERSED AND CAUSES

REMANDED FOR NEW, AND _ SEPARATE,

TRIALS.

SULLIVAN, P.J., and PINCHAM, J.,

concur.

47