dissenting:
When all the evidence against an accused is circumstantial in nature, People v. Crow (1985), 108 Ill. 2d 520, mandates that the court instruct the jury not to find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence. I disagree with the majority holding that any error in not giving this instruction here was harmless (112 Ill. 2d at 350); I would therefore reverse the defendant’s convictions and remand for a new trial.
It is clear from the recitation of facts in the majority opinion that no direct evidence against the defendant was presented. (Cf. People v. Crow (1985), 108 Ill. 2d 520.) Nevertheless, a jury could well have found Olinger guilty beyond a reasonable doubt based on the circumstantial evidence: he was placed at victim Adams’ house on the morning of the murder; the gun which killed Stevens and Bushman had been stolen from its owner in a burglary in which he and Ed Stadler participated; he was observed with a “large wad” of cash following the killings; and (according to Stadler) he had previously announced his intention to take over the drug business in Whiteside County by stealing drugs from codefendant Duncan and Adams and making sure there were no witnesses left. This evidence, however, was not sufficiently strong to permit a reviewing court to find that the error in failing to instruct the jury properly was harmless; this is particularly so in view of the other errors which occurred.
Our recent decision in People v. Crow is instructive. There the defendant was charged with the murder of her husband. According to our opinion in that case, testimony placed her at the crime scene — the defendant’s and victim’s home — around the apparent time of the murder; the gun used as the murder weapon, which had been purchased by the defendant, was found in the house after the shooting; the police believed that there had been a transparent attempt to make the killing appear as if it occurred in the course of a burglary; the defendant had a motive in that her husband was involved with another woman and defendant had once stated that she would kill her husband if he ever became so involved; and there was no sign of forced entry into the house. Despite this evidence, this court refused to find harmless the error in not instructing the jury to exclude every reasonable theory of innocence.
A different level of scrutiny appears to have been applied to the evidence in this case. While the evidence against the defendant was certainly incriminating, I am not willing to say from the cold record that a jury properly instructed would have necessarily convicted the defendant.
We should be especially slow to find error harmless where, as here, other significant errors also occurred. As the majority itself concludes, for example, Randy Stralow’s testimony that Adams had said he figured that Olinger and Duncan let the dog out in order to lure him home was inadmissible hearsay.
Another ruling by the trial judge may have frustrated the jury’s efforts to reach an accurate determination of guilt or innocence. The jury sent a note to the judge asking to see the transcripts of the testimony of several witnesses; the court responded by sending the jury a note which read: "No, the transcripts are not available. You must rely on your memories.” Nothing in this response indicates to me that the trial judge realized that he had the discretion to provide the transcripts and simply thought it inadvisable. Thus, as in People v. Queen (1974), 56 Ill. 2d 560, the trial judge committed reversible error by failing to exercise his discretion. The summary refusal to provide transcripts, in a case involving more than 60 witnesses, could only have exacerbated the failure to instruct the jury not to find the defendant guilty unless based on the facts and circumstances it was able to exclude every reasonable theory of innocence.
Finally, I disagree with the majority’s conclusion that the death penalty should be upheld even though the trial judge who imposed the death sentence was obviously confused on the question of the burden of proof at the sentencing hearing. Since a high standard of procedural accuracy is required in proceedings leading to a sentence of death (People v. Holman (1984), 103 Ill. 2d 133, 177), I believe this court has not given sufficient attention to the trial judge’s statement that the defendant had “the burden of proving [that the death penalty] does not apply.”
This court has held that “at the aggravation and mitigation hearing, there is no burden of proof, but, rather, the People have the burden of going forward with the evidence.” (People v. Del Vecchio (1985), 105 Ill. 2d 414, 446.) There can thus be no dispute that the trial judge’s statement was erroneous; the State conceded as much in its brief. Nonetheless, the majority asserts without explanation that “in context it is clear that the trial court meant only that once the State established the existence of statutory aggravating factors defendant had the burden of coming forward with evidence of mitigating factors sufficient to preclude imposition of the death penalty.” 112 Ill. 2d at 351.
Neither Del Vecchio nor People v. Williams (1983), 97 Ill. 2d 252, 302, held that the defendant has any burden of coming forward with evidence. Those cases held only that the State must come forward with evidence of aggravation. The sentencer may refuse to impose the death penalty based upon mitigation drawn from evidence at trial, from the State’s case at the sentencing hearing, or simply as an exercise of mercy. The claim that the defendant has the burden of coming forward with mitigating evidence erroneously suggests that the death penalty must be imposed if the defendant does not do so. I do not believe that the eighth amendment permits such a result.
More important to the defendant in this case, who did put on evidence in mitigation, is the majority’s conclusion that the trial judge did not mean what he said. The majority opinion does not identify which portions of the record provide the context which makes “clear” that the judge understood that the defendant had no burden of proving that the death penalty “does not apply” (112 Ill. 2d at 351). Although the judge made some statements which could be interpreted as correctly explaining the method for determining the appropriate sentence, I cannot say with certainty which of his conflicting expressions actually guided his action. I would therefore vacate the death sentence.