concurring in part and dissenting in part:
Although this is a difficult case, I am compelled to disagree with the majority on its reversal of the appellate court. In my opinion the majority commits two errors. It applies the wrong standard of review, and it finds the evidence sufficient to sustain a conviction based on a mere suspicion of guilt.
First, the majority fails to distinguish between appellate review of convictions based upon direct evidence and appellate review of convictions resting wholly upon circumstantial evidence. Where the State’s evidence is wholly circumstantial, the defendant cannot be found guilty unless the facts or circumstances proved exclude every reasonable hypothesis of innocence. (E.g., People v. Lewellen (1969), 43 Ill. 2d 74, 78 (stating rule, and applying to reverse conviction); People v. Willson (1948), 401 Ill. 68, 79 (stating as “unquestioned rule,” and applying to reverse); People v. Heep (1922), 302 Ill. 524, 529-30 (stating, and applying to reverse); People v. Ahrling (1917), 279 Ill. 70, 80 (stating, and applying to reverse); see also People v. Crow (1985), 108 Ill. 2d 520, 523, 533-36 (failing to accept the People’s contention that the court should abolish the distinction between direct- and circumstantial-evidence cases for purposes of appellate review); People v. Whitlow (1982), 89 Ill. 2d 322, 343 (acknowledging rule but holding that case included some direct evidence); People v. Rhodes (1981), 85 Ill. 2d 241, 249 (acknowledging rule but holding that fingerprint evidence excluded any reasonable hypothesis of innocence); People v. Foster (1979), 76 Ill. 2d 365, 373 (acknowledging rule but holding that State had excluded every reasonable hypothesis consistent with innocence).) Moreover, in a circumstantial-evidence case the evidence adduced must be conclusive and must produce a reasonable and moral certainty that the offense charged was actually committed and that the accused and no one else committed it. People v. Taylor (1984), 101 Ill. 2d 508, 515 (stating rule and applying rule to reverse conviction); People v. Heep (1922), 302 Ill. 2d 524, 529-30 (stating rule and applying to reverse); People v. Ahrling (1917), 279 Ill. 2d 70, 80 (same); see also People v. Williams (1982), 93 Ill. 2d 309, 322 (acknowledging application of rule to case where the evidence was “in large part circumstantial”); People v. Weaver (1982), 92 Ill. 2d 545, 555 (acknowledging rule but holding that evidence in case satisfied rule); People v. Berland (1978), 74 Ill. 2d 286, 308 (same).
The appellate court opinion relied on the “every reasonable hypothesis” rule because, under its analysis, the defendant’s declaration of his dream was not a confession and thus was not direct evidence. The State’s case was therefore considered wholly circumstantial. (135 Ill. App. 3d 773, 777.) It should be noted that the State did not contend that the dream declaration was direct evidence until the case was before the appellate court, and now apparently concedes that the evidence is wholly circumstantial.
Given this concession, it is strange that the majority opinion does not mention the applicable standard of review at all. It states: “A single question is presented for review: Was the defendant proved guilty of murder beyond a reasonable doubt?” (114 Ill. 2d at 342.) The opinion does not indicate whether it believes the dream declaration to be a confession or whether the evidence in the case is wholly circumstantial or partially direct. It does not cite either of the two rules applicable to wholly circumstantial-evidence cases. Nor does it cite any circumstantial evidence cases, omitting even People v. Heep (1922), 302 Ill. 524, which is cited in the appellate court opinion (135 Ill. App. 3d 773, 777).
The cases which the majority does cite are all, with one exception, cases in which the evidence was both direct and circumstantial, and which did not, therefore, require application of the “every reasonable hypothesis” and “moral certainty” standards. For example, in People v. Collins (1985), 106 Ill. 2d 237, 251-52, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267, the chief prosecution witness was himself a participant in the crimes charged and provided direct evidence that the defendants had committed them. In People v. Bradford (1985), 106 Ill. 2d 492, 496-97, 502, an eyewitness testified that the defendant engaged in lewd fondling and sexual intercourse with a minor. In People v. Brisbon (1985), 106 Ill. 2d 342, 350-51, 360-61, cert. denied (1985), 474 U.S. 908, 88 L. Ed. 2d 241, 106 S. Ct. 276, three eyewitnesses testified that the defendant committed the murder charged. While in People v. Adams (1985), 109 Ill. 2d 102, 115-16, it could be argued that the evidence was wholly circumstantial, there the court explicitly referred to the reasonable-hypothesis-of-innocence-standard. 109 Ill. 2d 102, 115.
This is not to say that the propositions for which the majority does cite these cases are inaccurate, or that they are inapplicable to circumstantial-evidence cases. But the lack of any reference to the usual standards for deciding circumstantial-evidence cases is troubling. If the majority seeks to abolish the direct-circumstantial distinction for purposes of appellate review, it should state that holding directly. If, on the other hand, it believes the dream declaration was a confession, and therefore direct evidence, it should also so hold. I believe neither decision would be correct.
It seems clear that the dream cannot be considered a confession. To constitute a confession, a statement must be a voluntary acknowledgement of guilt, embracing all necessary elements of the crime; and not merely an admission of incriminating facts. (People v. Sowell (1965), 56 Ill. App. 2d 110, 117-18, citing People v. Sovetsky (1926), 323 Ill. 133, 137.) The defendant here never acknowledged that the supposed dream was actually a recollection of his own commission of the crime, or even that he identified himself with the dream killer. Therefore, his dream declaration was not a confession. Accord, Commonwealth v. Maltais (1982), 387 Mass. 79, 438 N.E.2d 847.
While our appellate court has held that certain exculpatory statements of the defendant, not amounting to confessions, may be considered direct evidence (People v. Frazier (1984), 129 Ill. App. 3d 704, 707; People v. Garcia (1981), 95 Ill. App. 3d 792, 796; People v. Triplett (1980), 87 Ill. App. 3d 763, 770; People v. Spataro (1978), 67 Ill. App. 3d 69, 75; People v. Fletcher (1976), 40 Ill. App. 3d 537, 542, citing People v. Brown (1974), 56 Ill. 2d 312, 317-18, rev’d, and remanded on other grounds (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254), such statements will only be considered direct evidence if they establish defendant’s participation in the crime or an element of the offense (People v. Frazier (1984), 129 Ill. App. 3d 704, 707-08). Here, the defendant’s statements do not establish his participation. All of the statements purport to represent a dream rather than a recollection of an actual event in which he participated. The jury might have inferred either that the dream reflected his prior participation in the actual crime or that he was couching an admission of guilt in the form of a dream account. Either inference is so attenuated that the “dream” itself, however interpreted, cannot be considered direct evidence of guilt.
Moreover, the majority’s tacit abolition of the distinction between the differing standards of review for circumstantial- and direct-evidence cases should be rejected, and the distinction between the standards of appellate review appropriate to the two different types of cases should be preserved.
Circumstantial evidence is evidence from which the fact finder can draw an inference which supports the ultimate legal conclusion. Direct evidence is evidence which supports the ultimate conclusion without the use of inferences or without the use of any inference but the most commonplace and widely accepted. Thus, if a witness testifies to seeing X with a gun in hand aiming at Y, hears a loud noise, and sees Y fall to the floor, that witness has provided direct evidence of X’s guilt. If, on the other hand, a witness who does not see the murder should find X’s gun on the floor with X’s fingerprints on it, and Y dead beside the gun, that witness has provided only circumstantial evidence. In the first case, the trier of fact who believes the witness need only employ the ordinary inference that the witness’ sense perception reflected reality, and that the perception described will usually signify the initial aiming of a gun, its discharge, and the subsequent flight of a bullet which strikes the victim. In the second case, the trier of fact must not only believe the witness but must also infer from the fingerprint and ballistic evidence that the defendant, in an act seen by no eyewitness, fired the gun. This conclusion must rest on more remote inferences about the accuracy and reliability of scientific evidence, and must exclude as unreasonable the inference that some third party stole the gun, faked the fingerprints, and falsely implicated the defendant.
While these differences between the two types of evidence are not differences in kind but in degree, they do suggest that the task confronting a jury in dealing with the two types of evidence is different. It is true, as has often been noted, that circumstantial evidence may actually be stronger than direct evidence. The volume and quality of circumstantial evidence can render it more probative than the direct testimony of an obviously incredible witness. However, this does not mean that appellate review of the two types of evidence should be identical.
Where the jury’s verdict depends partially upon direct evidence, the function of an appellate court must be quite limited. Where direct evidence is introduced, the outcome will normally depend upon judgments as to the credibility of witnesses. These judgments, in turn, will rest heavily upon demeanor evidence unavailable to the reviewing court. We cannot hear the tremor in a witness’ voice, or see the sweat on his palms.
This is not to say that a verdict based upon direct evidence may never be overturned. In the rare case, the witness’ testimony may so contradict known facts or physical laws that it may safely be adjudged incredible as a matter of law. If a witness should testify, for example, that he saw the defendant rise from the floor like a soap bubble and remain suspended in midair, we can safely say that his testimony is incredible as a matter of law. However, in the ordinary case, the credibility of an individual witness is best left to the jury.
Cases based wholly upon circumstantial evidence are clearly different. In these cases, the verdict rests not only upon judgments as to the credibility of witnesses, but also upon the reasonableness of inferences drawn from the facts presented. Problems stemming from our inability to recapture demeanor evidence simply do not arise.
It is true that, even in a circumstantial-evidence case, counsel is free to attack the credibility of the witnesses through whom the circumstantial evidence is introduced. However, in such a case, the jury must not only assess the credibility of the witnesses but also must make reasoned inferences from the witnesses’ testimony, even assuming they find that testimony wholly credible. Those inferences which the jury draws from the testimony should be subject to review to determine if every reasonable competing inference of innocence can be excluded. Determination of the reasonableness of such inferences, unlike credibility, does not depend upon demeanor evidence at all. Therefore, that determination is clearly within the competence of the reviewing court.
While we have recently held that juries need not be given the reasonable-hypothesis instruction (People v. Bryant (1986), 113 Ill. 2d 497), the considerations outlined above convince me that the reasonable-hypothesis standard should not be similarly abandoned, at least not without separate and detailed discussion.
Second, using the proper standard, the evidence adduced here does not exclude a reasonable hypothesis of innocence. Nothing in the dream account refutes the reasonable hypothesis that the defendant experienced a dream which bore a coincidental similarity to the actual murder.
The voluntary declaration of a dream cannot by itself establish guilt beyond a reasonable doubt. (State v. Johnson (N.C. App. 1986), 338 S.E.2d 584, 585-87.) However, the majority relies upon certain “unusual” details taken from the defendant’s description of the dream to buttress its conclusion that the description reflects personal knowledge of the crime.
The majority opinion relies on these similarities between the murder and the dream:
(1) the defendant dreamed the victim was beaten repeatedly while the actual victim was also beaten repeatedly;
(2) in the dream the victim was beaten downwards, an account consistent with the forensic evidence of rug burns;
(3) in the dream the weapon used was described as long and thin; the actual murder weapon was a tire iron;
(4) in the dream, the defendant did not note that the victim resisted; the defendant was found making a “ommudra” sign used to signify the passive acceptance of death.
The majority also relies on forensic evidence that hairs found at the scene “matched” the defendant’s.
The description of any of the details as “unusual” or “strangely coincidental” defies common sense. Tire irons are not an unusual weapon. Many people who are beaten to death suffer multiple wounds. It is also probable that most beatings take place “downwards,” particularly if the attacker is taller than the victim, or if the victim does not remain standing before death. It is difficult to agree that any of these details is so “unusual” as to preclude the reasonable hypothesis that it was the product of fantasy rather than personal knowledge of the crime.
All of this evidence was so lacking in probative value that a reasonable hypothesis of innocence cannot be excluded. The forensic evidence, as presented, was so weak as to lack all probative value. The expert testified to a 4,000 to 1 probability of a match but then admitted that this probability would need testing of 40 characteristics. He tested only 10 to 12, and could not remember which. In addition, the victim’s apartment also contained hairs of another unidentified male, not the defendant.
The only truly unusual detail lies in the victim’s passive acceptance of death. Here, however, while the dream includes this unusual event, there is little evidence that the event actually occurred. The victim’s supposed passivity is based solely on her “hand-signal.” To give this account credence, the jury would have to discard the reasonable hypotheses that the victim’s fingers came together in her death throes without any conscious act, or that the victim made the signal but actually did struggle against her attacker, or that she made the signal for some other unknown reason. Given the many unexplained discrepancies between the dream and murder, this one coincidence did not entitle the jury to find the defendant guilty beyond a reasonable doubt.
I would have affirmed the appellate court and found that the defendant was not proved guilty beyond a reasonable doubt.