dissenting:
Over 11 years have passed since February 25, 1983, when 10-year-old Jeanine Nicarico was abducted from her home, raped, sodomized, and bludgeoned to death. Her murderer, Rolando Cruz, has twice been convicted by a jury and twice been sentenced to death. As was brought out at both trials, he had admitted his guilt to others on various occasions. Cruz, however, declined to testify to contradict any of the evidence against him. Today this court reverses his conviction and death sentence for the second time. The rationale for this reversal rests on three purported errors that occurred during the second trial. These claims of error are without merit. Thus, I dissent.
It is of passing interest that the conviction and sentence in the second trial of this case which we now consider were initially affirmed by a divided court on December 4, 1992. Thereafter, the composition of this court changed with the retirement of three Justices and their replacement with three new Justices. Defendant then filed a petition for rehearing and a carefully orchestrated and well-executed extrajudicial campaign was undertaken in defendant’s behalf. Feeds were given to persons in the media and stories began to appear in print and on television questioning the guilt of the defendant. A curious melange of religious leaders, law school deans, former prosecutors, special interest bar associations and law professors suddenly surfaced and filed a variety of amicus briefs in support of defendant’s petition for rehearing.
For many in the group, possibly even a majority, the solicitation to join this amicus crowd was not a hard sell, as they were already firmly opposed to the death penalty in any case, and regardless of whether it applied to the defendant Rolando Cruz or to anyone else.
The amicus former prosecutors included among their number the lawyer and author Scott A. Turow, a person most prominently known for his works of fiction. They argued on policy grounds that a 4-3 decision in a death case erodes the moral authority of the law, and that "the law’s ability to command the broad respect of the community is severely pressed” when three members of this court believe the defendant did not receive a fair trial. They did not mention that the defendant has twice been convicted by unanimous juries of 12 persons in separate trials. They also did not mention that the "law’s ability to command the broad respect of the community might be severely pressed” when it reverses a second conviction of guilty and sends a murder case back for retrial more than 11 years after the event and at a time when witnesses may be dead or unavailable, when evidence may be lost and when memories may have faded. Neither did they suggest any other workable rule for a seven-person supreme court than majority rule. They perhaps did not suggest an alternative method since the Illinois Constitution provides that the concurrence of four judges is necessary for a decision. Ill. Const. 1970, art. VI, § 3.
That more than a select few of the persons filing amicus briefs in this case could have other than a cursory familiarity with the facts is highly questionable. For the majority, most assuredly, their knowledge is secondhand, partial and incomplete. How many among them took the time to sift through the several thousand pages of transcripts and the numerous exhibits in order to form a knowledgeable judgment? The 24 religious leaders who combined to use their names in a joint appeal to this court, even when considered collectively, do not have the knowledge of this case which is possessed by even one of the jurors who heard the testimony and received the evidence at the trial.
The deans of six of Illinois’ nine law schools joined forces in a separate amicus brief. Implicit in this brief is the attempt by these law deans to use their good offices, their prestige and their leadership status to influence and sway the court’s decision on a factor that is at once irrelevant and improper — that is to say, apart from the merits, to influence the court’s decision on the basis of the prestige of the petitioners as law deans and oracles of the law. If it were otherwise, a single concerned law dean could have authorized the separate amicus brief. Honorable mention is due to those law deans who were invited but who had the wisdom and ethical sensibilities to reject the invitation to join this questionable cabal.
Justice is not served when public figures, by reason of their supposed prestige or status, importune a court to reach a particular result in a matter wherein they have no interest in the case beyond that of any other citizen. The trial of an accused murderer is a judicial proceeding which turns solely on the facts and the law applicable to those facts. It is not a public relations campaign. It is not a public opinion poll. It is not a situation where the prestige or status of the petitioner should have significance or application. The test of a verdict and a judgment of guilty is solely its correctness under the law.
In any event, a rehearing was ordered and the new majority on this court now reverses and remands this case for a new trial on the merits. What are the facts?
I. Establishment of Guilt
The plurality opinion1 authored by Justice Freeman and joined by two other Justices focuses on supposed errors of the trial judge and says very little about the evidence amassed against the defendant. Consideration of that evidence, however, is necessary for a full understanding of this case. What it shows is that the defendant convicted himself by his several out-of-court statements. These ranged from his furnishing of detailed factual information known only to a person involved in the crime to outright admissions that he was the killer. In sum, these statements, together with the other evidence in the case, furnish ample support for the jury’s verdict of guilty beyond a reasonable doubt. Detailed summations follow.
Defendant became a suspect when, in hopes of collecting the reward offered, he approached the police with information about the Nicarico murder. On May 2, 1983, Detective Dennis Kurzawa interviewed defendant, who claimed he had received information from a man named Ray Ortega. Defendant told Kurzawa that Ortega and another man, Alexander (sometimes called Alejandro) Hernandez, had kidnapped a little girl during the course of a home invasion in Naperville. The girl had been injured, and Hernandez felt that he "had better finish it.” The home invasion had been set up by a person that defendant knew only as "White Boy.”
On May 9,1983, defendant phoned Detective Thomas Vosburgh. He reported that Hernandez fired a gunshot at him because he knew too much about the Nicarico murder. Vosburgh picked up defendant, but could find no evidence of a shooting. Vosburgh took defendant back to the Du Page County sheriffs office.
On the way back to the sheriff’s office, defendant began talking with Vosburgh. He was very upset and emotional. He told him that he had had a vision which revealed to him what had happened to the murdered girl in Naperville. He said that Jeanine had been dragged from her house, wrapped in a blanket, and placed in a car. He knew that she had been anally raped, hit on the back of the head so hard that her head left a depression in the dirt, and left in woods near a field. His account was accurate and replete with facts not known to the public. He begged Vosburgh to tell him that his "vision” was incorrect.
Upon arriving at the sheriffs office, he spoke with Vosburgh and Detective Kurzawa, where he reiterated his story about his vision. Again, his account included facts about how Jeanine was murdered that were not available to the public, and again he begged the officers to tell him it was not true. The detectives spoke with Thomas Knight, the chief prosecutor of Du Page County, because defendant knew too much nonpublic information about Jeanine’s murder. Knight decided to put defendant before a grand jury, and set up a date for three days later (May 12).
Cruz spent the night of May 9 at the sheriffs office. The next morning he again spoke with Detective Kurzawa, and at this time expanded on his story. Defendant said that on the previous evening he had been approached by Hernandez about 30 minutes before a gunshot was fired at him. Hernandez had pointed to his head and told defendant that that was where he had hit Jeanine. Hernandez related that at the outset he had not meant to hurt Jeanine, but once he hurt her he felt he had to "finish it.” Hernandez also opined that defendant knew too much, and asked, "What good is a dead Chinaman?” Chinaman was defendant’s street name. Thirty minutes later someone shot at defendant with a gun. At some point, defendant experienced his vision which told him the unreleased facts of Jeanine’s murder.
Defendant also told Kurzawa that he had received information from a man named Emilio Donatlan. Donatlan had told defendant that Ray Ortega had been over at his house on the day of the murder, at which time they were sniffing paint to get high. Hernandez came over with Jeanine, and offered her to Donatlan for sex. Donatlan accepted. The girl began screaming, Ortega told Donatlan to quiet the girl, and Donatlan struck her over the head with a bat. Ortega then kicked Jeanine down the stairs. At some point Jeanine’s nose was broken. Hernandez then took her out to the car and drove away with her, and defendant denied knowledge of what happened after that.
While defendant’s knowledge of the nature of the attack was damningly accurate, his version of the circumstances surrounding the attack soon proved to be false. The supposed players in the murder were interviewed, and Donatlan’s house was searched.
Cruz related this same basic story before the special grand jury that convened on May 12, 1983, except that he did not claim to have come by the information through a vision. Instead, he said he derived the knowledge from talking with Ortega and Hernandez. Outside the presence of the grand jury, Knight asked defendant what he was doing on February 25, 1983. Defendant replied that he was working at the Oasis Whirlpool. However, upon investigation the owner told police that defendant did not begin working there until several months after February 1983.
On May 26, 1983, defendant went out with Dan Fowler to celebrate his birthday. Fowler testified that he picked up defendant, that they purchased some beer, and that they were sitting in Fowler’s car when defendant became very emotional and started to cry. Fowler had never seen defendant cry before. Defendant asked Fowler if he had heard about the killing of the little girl in Naperville, and told Fowler that he was there and had been involved but was not the one who killed her. He told Fowler that Jeanine had reminded him of his little sister. He told Fowler that the murder weapon was a baseball bat and that he knew where it was. However, when Fowler suggested that they retrieve it and turn it in to the police, defendant said no. They then went to the house of John Ruiz, whose mother and sister were employed by the Nicaricos as housecleaners.
On June 24, 1983, defendant was again brought before a grand jury, and again asked where he was on February 25, 1983. At this time he changed his alibi, claiming that he was smoking dope all day with Iliana Garcia, Gracie Martinez, David Hoehn and Joe Schaeffer. Again, this alibi did not pan out.
On July 21, 1983, defendant was brought before a grand jury for the third time. He talked about his conversations with Detectives Vosburgh and Kurzawa, and again related how Jeanine was killed. Once again, he demonstrated knowledge of information not possessed by the general public.
Ramon Mares, a friend of defendant, testified before a grand jury on October 20,1983. He said that, in March of 1983, he was riding around with defendant in a car when defendant told him that he had been present at the Nicarico slaying, but that he was not the one that killed her. At defendant’s trial, Mares limited the extent of the March 1983 discussion. Mares testified that defendant became very upset and began to cry, which was unusual for defendant. Defendant told him to "promise not to tell anyone. I know who killed the little girl in Naperville. I know who did it.” Mares then asked him how he knew, and whether he was present at the murder. Defendant’s reply was inaudible.
On November 21, 1983, defendant, who was then confined to the Du Page County jail, talked with Steven Ford, a fellow inmate. He told Ford that he "kind of’ killed a girl in Aurora. He also said that he had stashed something "in the woods.”
On March 13, 1984, defendant asked to speak with the lieutenant in charge of the Du Page County jail, Robert Winkler. He told Winkler that Hernandez and Stephen Buckley had approached him to commit a burglary in Naperville. He declined, but hot-wired a car for them. Hernandez called him two days later, and asked him if he wanted to have sex with a little girl. Again, Cruz declined. Hernandez then indicated that he would dispose of the vehicle that Cruz had hot-wired.
In November 1984, defendant had many conversations with Steven Pecoraro, another inmate in the Du Page County jail. Defendant told Pecoraro that he, Hernandez and Buckley had broken into the Nicarico house, they abducted Jeanine, and took her to an abandoned house. They took the girl, who was screaming and crying, upstairs. Hernandez put two fingers into her vagina. He told him that she was killed because, once they had taken her, it was too late to let her go because she could identify them.
Pecoraro also testified about an incident that occurred one morning in February 1985. Defendant came into a common area shared by defendant, Pecoraro, and others, and was in a good mood. He was singing, "Ooh little Jeanine,” and he bragged that he was going to write a book called "How to Kill Little Girls, or Five Ways to Crush a Skull.”
In late summer and early fall of 1987, while an inmate in the Menard penitentiary, defendant had several conversations with Robert Turner, another inmate. On at least one of these occasions, defendant related how Jeanine had been killed. He gave basically the same story that he gave to Pecoraro except that he told him that Brian Dugan was also involved. Defendant told Turner that he had tried to "scam” the reward money from the authorities by telling them that he had received a vision of how Jeanine had been murdered. At that time defendant also told Turner that "it was a shame that he had to kill her, because she was the tightest little white bitch he ever had.”
In an attempt to discredit Turner’s testimony, the plurality improperly reaches outside the trial record and considers, as an impeachment matter, statements made by prosecutors at Turner’s own trial. The gist of the statements is that Turner and the State may have made a deal in exchange for Turner’s testimony. The plurality opines that the arrangement "clearly impugns Turner’s testimony at defendant’s trial concerning any agreement he might have made with the State.” (162 Ill. 2d at 330.) However, since defendant chose not to introduce this information at his trial despite its availability, any sua sponte weighing done by this court as to the relative credibility of the evidence (a dubious exercise to begin with) should be resolved in the State’s favor.
II. The Dugan Statements
At the heart of the majority’s reversal is its resolution of the admissibility of several statements made by Brian Dugan. As elaborated by the plurality, Dugan claims to have murdered Jeanine Nicarico on his own. Dugan, currently serving consecutive natural life sentences without possibility of parole, refuses to testify to this claim without the promise of no further punishment. Not surprisingly, the State has declined his invitation, both for the lack of consideration in Dugan’s proposed deal and the desire to not suborn perjury.
Defendant argues that, since Dugan will not testify to his guilt, Dugan’s inculpatory hearsay statements are admissible despite the lack of cross-examination or any other means of assuring their reliability. Defendant relies on the statements-against-penal-interest exception to the hearsay rule in support of his assertion. The trial court agreed with this analysis, and allowed the statements into evidence. The majority affirms this ruling.
The admission of these statements is at the very core of the majority’s decision to reverse defendant’s convictions. Were my colleagues in the majority to conclude (as I think they should) that the Dugan statements should never have been allowed into evidence in the first place, the three errors that form the basis of today’s reversal would no longer be relevant. There could be no obligation to supplement the erroneously allowed statements with the other-crimes evidence, the first cited error. The second cited error, the impermissible impeachment of Erma Rodriguez, would likewise be rendered a nullity since she was called only to establish a linkage between Dugan and Cruz. The third cited error, the admission of bloodhound evidence, would also no longer be relevant since it went only to discredit these statements.
As noted by both the plurality and the concurring Justice, the United States Supreme Court and this court have addressed the statements-against-penal-interest exception to the hearsay rule (162 Ill. 2d at 343). The trial court correctly boiled down the law, at least as it applies to this case, into a two-step analysis: whether Brian Dugan’s statements were against his penal interest, and if so, whether there were sufficient indicia of reliability surrounding the statements.
The plurality opines that the State conceded the second prong of the analysis. This is not true. In this appeal, the State contends that the statements should not have been allowed into evidence under the statements-against-penal-interest exception to the hearsay rule. Again, in order to be admissible, the two-step analysis as set forth above must be satisfied: the statements must have been against Dugan’s penal interest, and there must have been sufficient indicia of reliability surrounding the statements. The State contends that the two-prong test is not met, and cites United States v. Barrett (1st Cir. 1976), 539 F.2d 244, 251, and United States v. Oropeza (9th Cir. 1977), 564 F.2d 316, 325, "for discussion of this two-pronged test.” The State adequately preserved both parts of the necessary analysis of this issue.
The plurality’s conclusion that the State waived the second prong of the two-pronged test is wholly gratuitous. There was no waiver of this issue. That is to say, there was no waiver of that part of the test which requires that there must be sufficient indicia of reliability surrounding Dugan’s statements. In implicit recognition of its own error in this regard, the plurality proceeds to a partial, albeit unsatisfactory, discussion on the merits. As is fully set forth below, that discussion will not survive analysis.
A. Whether Dugan’s Statements Were Against His Penal Interest
The first step in determining whether Dugan’s statements should have been entered into evidence is to determine whether they were against his penal interest. As noted by the trial court, this is a relatively low threshold. However, the threshold is there, and hearsay statements should be excluded when the threshold is not met. Such is the situation in the instant case.
In the fall of 1985, Brian Dugan was arrested in connection with the murder of Melissa Ackerman. After his arrest, Dugan approached the police and told them that he was willing to give them information about other rapes and murders he had committed if the prosecutors in the relative counties would agree to forgo the death penalty.
Pursuant to this offer, nine sessions were had, beginning with the November 13, 1985, discussion referred to in the plurality opinion, where various authorities obtained information from Dugan. (162 Ill. 2d at 332.) In every session, Dugan either conditioned his information on the agreement that it could not be used to procure the death penalty against him, or when the authorities who could enter into such an agreement were not present, he offered the information in hypothetical terms.
Supreme Court Rule 402(f) states that "[i]f a plea discussion does not result in a plea of guilty, or if a plea of guilty is not accepted or is withdrawn, or if judgment on a plea of guilty is reversed on direct or collateral review, neither the plea discussion nor any resulting agreement, plea, or judgment shall be admissible against the defendant in any criminal proceeding.” (134 Ill. 2d R 402(f).) Since the information given by Dugan at the nine meetings was provided, without exception, either hypothetically or upon the condition that it could not be used to procure the death penalty against him, every statement at issue fell squarely within the scope of Rule 402(f).
The statements Brian Dugan made concerning Jeanine’s murder were made under circumstances where a third natural life sentence without possibility of parole was the worst possible result. We may take judicial notice that Dugan will be unable to serve more than one natural life sentence. Whether he is sentenced to a second, or a third, or even a hundredth life sentence, the practical effect is nugatory after the first sentence. Dugan simply has no more time with which to pay his debt to society.
Since statements with no possible adverse consequences, by their very definition, would never be against one’s penal interest, this would seem to be the end of the analysis. The plurality, however, has found a way to evade this seemingly inevitable result. It reasons (without a single citation in support) that it is "the qualitative content and circumstances of Dugan’s statements, rather than their evidentiary value, which determines whether they were against his penal interest. *** [B]y making such a statement, Dugan was exposing himself to the prospect of criminal prosecution; indeed, that was the whole point in making the statement.” Since Dugan’s statement alerted Du Page County to start looking for inculpatory evidence against Dugan which could lead to Dugan’s prosecution and the imposition of the death penalty, the statements were against his penal interest. 162 Ill. 2d at 345-46.
There are two flaws in the plurality’s suggestion to expand the statements-against-penal-interest exception to the hearsay rule. First, it assumes that there will be inculpatory evidence against the declarant for the State to find. In the event a declarant knows that no such inculpatory evidence will be found because he did not commit the crime at issue, he risks nothing by making statements inculpating himself when they will forever be beyond the State’s power to use against him.
This suggested expansion of the statements-against-penal-interest exception would swallow the rule by de facto creating a per se rule allowing the admission into evidence of any claim made by a third party that he committed the crime, regardless of circumstances in which it is made. Any such claim could, in the abstract, lead prosecutors to evidence against the claimant. Given the inability of the State to cross-examine the statements, we should be wary of virtually abandoning the hearsay rule in this context.
In fact, this very case demonstrates why we should be so wary. In the eight years since Dugan made the statements at issue, no evidence has been found to prompt Du Page County into filing charges against him. Indeed, defendant argues to this court that the State should be forced to give Dugan immunity precisely because it appears that no such charges will ever be filed. The State has kept open the possibility of prosecuting Dugan, as is its prerogative. But it is readily apparent that Dugan did not lead the State to any inculpatory evidence by making these statements. The facts of this case demonstrate why an expansion of the statements-against-penal-interest exception to the hearsay rule is unwise.
The second flaw in the plurality’s analysis comes from its overreliance on the fact that "by making [the statements], Dugan was exposing himself to the prospect of criminal prosecution; indeed, that was the whole point in making the statement.” 162 Ill. 2d at 345-46.
Webster’s defines "penal” as "Of or relating to punishment, as for infractions of the law.” Someone’s penal interests are jeopardized when he can be punished, not merely prosecuted. Statements made that allow for, or even encourage, prosecution with absolutely no chance of punishment are not against a person’s penal interest.
Dugan, with the help of his lawyer, skillfully made these statements so that he could in no way be punished for the crimes he claims he committed. Statements made under these conditions are not against one’s penal interests.
Because Brian Dugan’s statements were in no way against his penal interest, they should never have been entered into evidence. Thus, the failure to allow evidence to bolster these statements, either through corroboration or to establish modus operandi, did not prejudice defendant and cannot be deemed reversible error. Nor did the improper impeachment of a witness, called solely to link defendant to the man making these improperly allowed statements, prejudice defendant, since she would not have been called had the statements been excluded. Finally, allowing the improper testimony concerning the actions of bloodhounds is likewise rendered irrelevant, since it went only to show the falsity of Dugan’s statements.
B. The Reliability of Dugan’s Statements
Concluding that these statements were not against Brian Dugan’s penal interest would end the analysis. However, even if one were to agree with the plurality that the statements were somehow against his penal interest, the statements are not accompanied by sufficient indicia of reliability to bring them within the hearsay exception. Indeed, an examination of the facts establishes that Brian Dugan wove a fabric of lies at every stage of his Nicarico fantasy.
The plurality correctly points out that this court will not undergo a de novo review of evidentiary considerations, instead deferring to a trial court’s discretion. However, our general deference to trial court determinations does not put the issue beyond the reach of this court. When a decision is so completely at odds with the facts, this court may take notice and act accordingly. The trial judge’s determination in this case is one such decision.
The trial judge did not articulate which factors he felt indicated that Dugan’s statements were reliable. Instead, he made a general ruling that, "without highlighting specific facts; in other words, based on the totality of the facts, it is the decision of this Court that there are sufficient corroborating circumstances that allow the statements of Brian Dugan to be permitted during the trials of defendants.”
The plurality identifies the following aspects as indicative of reliability: Dugan’s general description of the Nicarico house; the drive around during which Dugan was eventually able to find the Nicarico house and the Prairie Path; that Dugan missed work on the day of the murder; a shoeprint on the front of the Nicarico door which was consistent with one of Dugan’s variations of the day’s events; that Dugan was able to describe the cloth tape used to wrap Jeanine’s head; that Dugan’s repossessed car was missing a tire jack; that two utility workers saw someone who looked like Dugan driving a car at the time and near the scene of the murder; and that a woman who worked in a church near the Nicarico home claimed she saw Dugan in her office on the day of the murder.
An examination of each of these factors shows that, far from being corroborative, most actually contradict Dugan’s testimony, while many others tend to cast doubt on the statements. Taken together, they cannot reasonably be described as lending any sort of reliability to Dugan’s statements. The trial court’s conclusion to the contrary was an abuse of discretion.
The first corroborating factor cited by the plurality is that Dugan’s description of the Nicarico house was "generally accurate.” (162 Ill. 2d at 336.) It states:
"Dugan’s description of the home’s floor plan was accurate (stairs near front door, leading to below-ground recreation room; nearby stairs leading to upstairs bedrooms; wooden railing on stairs). Dugan was also able to describe certain features of the Nicarico home: he recounted correctly that there was a brown dresser in Jeanine’s bedroom; that there was beige-colored carpeting in the lower recreation room and on the stairs leading down to the room; that the entry way flooring was parquet-like; that the television in the lower recreation room was set apart from other furnishings in the room; that colors in the home were light; that certain doors opened in particular directions; that the bed on which he threw the victim was unmade. (Jeanine’s sister testified that she had not made the bed that morning, but had simply covered it with a spread.)” 162 Ill. 2d at 337.
However, most of Dugan’s "generally accurate” descriptions are misstated by the plurality. For instance, Dugan was incorrect about the location of the stairways in the house, the color of the carpeting in the rec room, and the location of the television in the rec room. As for his description of the house’s colors, Dugan said more than just that the colors in the home were light; he said that there were no dark colors in the house at all. However, the rec room, where the initial abduction supposedly took place, had dark wood paneling and a dark multicolored rug, and would generally be defined as "dark-colored.” Finally, Dugan’s indication that there was one railing along one of the stairways was inaccurate, since there were two railings along both stairways.
It is true that Dugan described a brown dresser in Jeanine’s bedroom (hardly an unusual color for a dresser or an unusual place for a dresser to be), that he knew that the bedroom was upstairs (hardly an unusual place for a bedroom to be), and that his claim that the bed was unmade could be resolved in his favor, since there was conflicting testimony. (Jeanine’s mother testified that the bed was made.) This last piece of knowledge is unremarkable, as beds are generally unmade when one spends the day sick in them.
The best that can be said about Dugan’s statements is that his more general descriptions fit the Nicarico house, as well as the prototypical two-story house. When pressed for specifics, however, Dugan’s descriptions are wildly inaccurate.
Dugan claimed that when he approached the house, he noticed a wrought iron fence or railing along the walkway in front of the house. There was nothing of the kind.
After talking with Jeanine through the door, Dugan claimed, he kicked the door in, one time saying that he used two kicks. When he gave this version of the day’s events, he claimed that the second kick was necessary to break through the chain lock. However, there was no chain lock on the Nicarico door.
Upon entering, Dugan claimed, he saw closet doors in the front hall. There are no closet doors in the front hall.
Dugan claimed that he then ran after Jeanine, who had run into the rec room. As previously indicated, the plurality cites his description of the rec room as corroborating; however, it is nothing of the sort. Dugan described patio doors in the rec room, implying that it was on the main level. The Nicarico rec room, being below ground, could not have had patio doors. Anyone who had actually been in the rec room would know that patio doors are an impossibility. Dugan also stated that there were no dark colors inside the house, only light colors. However, the rec room had dark grain wood paneling. Dugan said that the rec room’s carpet was beige; however, the Nicarico rec room had a multicolored rug.
The plurality also cites Dugan’s description of the television set in the rec room as corroborating. Dugan described a console television in the center of the rec room. In fact, the Nicaricos had a portable television on a TV stand in the corner of the room. Far from' corroborating his story, this statement only shows that Dugan correctly guessed that there was a television in the rec room. When pressed for a description or a location, he took a shot in the dark and missed completely.
Dugan then claimed to have taken Jeanine upstairs to her bedroom. However, when pressed to describe the floor plan of the house, he could not correctly place the location of either the stairs leading up or the stairs leading down. When asked to describe the stairs, he said that one of the stairways had a wooden railing. In fact, both stairways had two wooden railings.
Upon arriving upstairs, Dugan claimed to have thrown Jeanine upon "the bed,” implying that he thought there was only one bed in the room. There were actually two beds in the room. He stated that there was a small nightstand between "the bed” and the bedroom door. There was no such nightstand. In fact, the only accuracy in this shotgun description of the bedroom was that there was a brown dresser in the room, which is again hardly an unusual color or place for a dresser to be.
In short, Dugan was able to give a general description of a two-story house. When pressed for specifics, his description failed in every regard. This description can hardly be described as corroborative.
The plurality next notes that, when driven around the Nicarico neighborhood by police, Dugan was able to locate the house and the approximate site on the Prairie Path where the victim’s body was found.
Dugan’s ability to identify the Nicarico house is hardly noteworthy. At the time of the drive around, the Nicaricos had a mailbox in the front of the house with their name on it. The police failed to remove this mailbox before conducting the drive around. Dugan’s ability to identify the house demonstrates only that he is literate.
As to Dugan’s ability to locate the Prairie Path, Dugan’s identification did not go as smoothly as implied by the plurality. During the drive around, Dugan missed the Prairie Path and had the officers continue north on Eola Road. He had no idea he was in the wrong place until Eola Road ends in Butterfield. The officers stopped the car and asked Dugan what they should do. He realized that they must have missed the Prairie Path, and directed them to return from where they came. On the way back they passed a sign that said "Prairie Path,” and Dugan identified this as the Prairie Path. Again, a remarkable demonstration of Dugan’s literacy, but little else.
The plurality next notes that Dugan missed work on the day of the murder. This is true, and would tend to corroborate his versions of the day’s events.
Next, the plurality cites as corroborative the fact that a shoeprint was found on the Nicarico front door which was made by a right foot which kicked the door twice. This is consistent with one of Dugan’s variations of the day’s events. It should be noted that this statement was made at the same time Dugan claimed that the second kick was needed to break through the chain lock on the door. There was in fact no chain lock on the door. Thus, Dugan changed his story in a way that was more consistent with the facts in general; however, he again failed when pressed for specifics.
The next factor cited is that Dugan correctly described the tape used to wrap Jeanine’s head in a towel. This is true and tends to corroborate his versions of the day’s events.
The next "corroborative fact” cited by the plurality is that Brian Dugan’s car was missing a tire jack. Repossession records do indicate that Dugan’s tire iron and jack were missing. This fact is apparently seen as corroborative of Dugan’s claim that he killed Jeanine with a tire iron.
Dugan also claimed that he gave the tire iron to Denise Poquette. Denise, and the rest of her family, denied ever receiving the tire iron or jack. Dugan then changed his story, claiming to have left it behind a water heater in the basement of the Poquettes’ house. Again, this story did not pan out. Police checked the Poquettes’ house, and found no tire iron or jack. Dugan then further amended his story, now claiming that he had put it behind the water heater, but knew it could not be found there because he had later tried to retrieve it but found it missing.
This series of stories suggests that, whatever Dugan was claiming about the tire iron and jack, it was not entirely truthful. As an initial matter, I fail to see how untruthful statements can be seen to indicate the reliability of other statements made by the liar.
More importantly, the absence of the tire iron and jack is simply too tenuous to provide anything in the way of corroboration. No tire iron was ever found that could have possibly been the murder weapon. Further, defendant could not establish that a tire iron was indeed the murder weapon. The best he could do was provide a defense-paid expert witness who testified that a tire iron could not be ruled out as a possible murder weapon. That witness did not rule out anything as a possible murder weapon. It is significant that defendant could not find a single expert who would testify that Jeanine was in fact struck with a tire iron, which I would suggest is minimally necessary before the lack of a tire iron is considered corroborative.
On the other hand, Dr. Frank Cleveland, the man who performed Jeanine’s autopsy and without question a disinterested third party, testified that a tire iron absolutely could not have been the murder weapon, because a tire iron’s diameter and width would not fit the pattern of the blows that Jeanine suffered.
Most likely, Brian Dugan identified a tire iron as his murder weapon because he knew it could not be found, and therefore his story could not be proven false. This conclusion is far more reasonable than the supposedly corroborative idea that a tire iron which did not match the blows received by Jeanine, and which was never found, was the murder weapon. There is simply no corroboration here.
The plurality next cites the observations of two tollway workers as corroborating. An examination of their testimony reveals otherwise.
The relevance of this testimony arose from Dugan’s claim that, after the murder, he drove to the end of the Prairie Path and turned around. At some point his car, a four-door green Plymouth Volare missing one hubcap, got stuck in the mud. Depending on which variation of the day’s events Dugan was giving, he either got out and pushed the car or he opened the door, stayed in the car and rocked the car free with his foot.
The two tollway workers, Frank Kocheny and Roger Seppi, were called by the defense to testify that they saw a white man driving a green car at 2:40 p.m. near the place of the murder. However, the men’s testimonies, wound up contradicting Dugan’s claims, not corroborating them. First, they established that the car was not Dugan’s. Frank Kocheny testified that the car, while green and missing a hubcap, was in fact a two-door Ford Granada and not a four-door Plymouth Volare. He also testified that the car was never stuck in the mud, and that the driver never got out or even stopped the car. Seppi testified that he saw a green vehicle, but would not describe it in any more detail. On cross-examination, he conceded that two weeks after the murder, he had described it as a two-door Ford Granada.
Kocheny went even further with his testimony and unequivocally testified that the driver was not Brian Dugan. The man he observed was a "white male with dark hair, it could have been dark brown or black. It wasn’t long. And he didn’t have a beard, but he needed a shave. It was like a 5:00 o’clock shadow, maybe two or three days’ growth. Kind of a chubby face. I would say medium build.” Kocheny, who had seen pictures of Dugan, was then asked whether Brian Dugan was the man driving the car. Kocheny answered definitively "no.”
Interestingly, this description is at odds with the description given by Eloise Suk, discussed infra; yet the plurality cites both competing descriptions as corroborative.
The only corroborative points between the observations of the tollway workers and Dugan’s story is that a green car with a missing hubcap was seen driven by a white male. In light of Kocheny’s unequivocal testimony that the driver was not Brian Dugan, that the car did not match Dugan’s, and that the driver did not do what Dugan claimed he did, this is not corroborative. In fact, it strongly suggests that there continues to be no one who can place Brian Dugan near the scene of the crime.
Finally, the plurality cites as a corroborating factor that Dugan gave his name to an employee of a church located within a half-mile of the Nicarico residence on the afternoon of the murder. This is yet another event that cannot be considered corroborative. Indeed, if the event happened as related by the employee (and there are many reasons to think that it never occurred at all, as will be explained), it tends to disprove Brian Dugan’s statements by establishing an involuntary alibi. If the employee’s statements are true, it would definitively show that the man the tollway workers saw near the scene of the crime was not Dugan.
Eloise Suk testified that on the day of the murder she was employed as a secretary at St. John’s Episcopal Church, which is about a half-mile from the Nicarico residence. On that day a man knocked on the door to the office, which was locked. She let him in, and he asked about a job application he had supposedly left with another employee. She told him that there was no job available, but that if he left his name she would put it in the church newsletter. The man wrote down “Brian Dugan” and a phone number with an Aurora exchange.
Suk testified that she kept the paper with his name in her desk for about a year, although shortly after the incident she and the pastor decided not to put it in the newsletter. Thirty-one months after the murder she recognized Dugan when she saw him on television.
Suk recanted an earlier statement that she made to police that the man walked in the office at 2:10 p.m. and left at 2:23 p.m. In her new version, she claimed that the exchange probably occurred between 1:10 p.m. and 1:23 p.m. She thought the latter time period was more accurate because she normally left at 1 p.m. on Fridays, and never during her employment did she stay at work until 2 p.m. on a Friday. Apparently, by this testimony she also meant to recant her earlier statement to Agent Thomas Fischer that this exchange occurred on Wednesday, February 23.
This testimony is at odds with a newspaper interview she gave to Chicago Lawyer, which appeared in April 1989, about nine months before she testified. There, it was reported that "she usually left at 2 on Fridays, but [on February 25, 1983] she had been unusually busy and was running a few minutes late when she heard a knock on the front door of the church. She glanced at the clock, which showed 2:10. She couldn’t help thinking that if she had left on time she would not have to deal with whoever this was.” (Garrett, Prosecutors Are Hiding Truth in Nicarico Case, Says Witness, Chicago Lawyer, April 18, 1989, at 1.) Thus, her understanding of the time frame of that day’s events did not change until over six years had elapsed.
Suk’s description of the man differed from Kocheny’s. While Kocheny described a man with a chubby face and no facial hair, Mrs. Suk described a man with a slim face and, after another change in her story, a man with a mustache. She testified that the man made her nervous, and that when she heard about the Nicarico murder she talked about the man to her family. He did not make her nervous enough or suspicious enough to call the police.
In addition to Suk’s recanting several statements made more proximate to the day in question, there are several other inconsistencies which refute any reasonable belief that Suk ever met Brian Dugan. First and most importantly, Brian Dugan has never once mentioned that he went to a church on the day of the murder. He has never once stated that he talked with someone about a job despite several very detailed descriptions of his purported actions on that day. This fact alone refutes the idea that Suk’s account corroborates Dug-an’s statements, because there is in actuality nothing to corroborate. The best that can be said is that it is completely irrelevant, probably a case of mistaken identity.
Further, Suk’s testimony is inconsistent with the "corroborating” factor that tollway workers saw Dugan at 2:40 p.m. near the Prairie Path. If Suk indeed saw Dugan, he could not have been the man seen by the tollway workers driving the green car.
Assuming that the original time period given by Suk is true, getting from the church to the Nicarico house (a half-mile away) and then to the Prairie Path (19 minutes away from the Nicarico house) by 2:40 {i.e., in 17 minutes) would be a physical impossibility, even if the abduction, rape and killing could have been performed instantaneously.
However, even taking Suk’s change in story at face value, it is unreasonable to think that Dugan could have left the church at 1:23 and performed all the acts he did, including approaching a resident who lived near the Nicaricos to borrow a screwdriver, fixing his car, driving around aimlessly, abducting Jeanine, looking for an isolated spot, driving to the Prairie Path, raping and murdering Jeanine, and be seen driving away at 2:40. Again, Dugan never claimed to have done this; Suk alone offered this deviation from Dugan’s purported actions. In fact, none of Dugan’s various stories leave room for this transaction. Yet the plurality finds this testimony corroborating.
The sum of the true corroboration of Dugan’s statements is this: Dugan missed work on the date of the murder, he correctly described the tape used on Jeanine, and he claimed to have entered the house in a manner partially consistent with the evidence. Even before considering the many inconsistencies of Dugan’s statements, these facts alone are simply not enough to establish the corroboration required by Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038, and People v. Bowel (1986), 111 Ill. 2d 58, under any standard of review. The trial court’s ruling to the contrary was an abuse of discretion.
Once the inconsistencies of Dugan’s statements are entered into the equation, the false nature of his story becomes manifest. Some of these inconsistencies have already been highlighted, and the plurality gives a minimal concession of their existence. However, a careful review is worthwhile for two reasons: first, the inconsistencies further demonstrate that Dugan’s statements are not corroborated in any sense, and therefore should never have been allowed into evidence; second, and more importantly, they affirmatively demonstrate that the murder could not have occurred as Dugan asserts.
To begin with, and as previously alluded to, there are a number of internal inconsistencies in the nine statements given by Brian Dugan. Like most liars, Dugan was unable to keep track of his fabrications. The result is not a single set of events related by Dugan, but rather a series of alternatives.
Initially, when asked why he went into the Nicarico neighborhood, he said it was because his car was not working properly. He later changed this story, claiming instead that he went into the neighborhood because he needed money.
What happened when he arrived in the Nicarico neighborhood? One constant among his several versions is that he borrowed a screwdriver from an elderly lady whose house was a block or two from the Nicaricos’. Despite an exhaustive search, however, police still do not know who this woman is or which house was hers.
Small wonder. Dugan has on different occasions described this house as a dark-colored house, a brick house, a red wood house, and a brown house. Sometimes it was a single-story house, and other times it had two stories. Sometimes there was an attached garage.
Depending on the story, Dugan returned the screwdriver either to the lady from whom he borrowed it or to her daughter. Sometimes he saw two elderly men in the house, sometimes only one.
What happened when he arrived at the Nicarico house? Again, it depends upon which "reliable” story one relies upon. At first, Dugan said he parked in the driveway. Then, he initially parked in the street but moved the car into the driveway at some point during the abduction. Later, he said he could not remember where he parked.
While inside the house, sometimes Dugan tied Jeanine’s hands, sometimes he did not. One time he tied her hands behind her back. Sometimes he gagged her.
Dugan’s sexual attack also varies from story to story. Sometimes there was only anal sex, sometimes there was oral sex and anal sex, and sometimes an attempt at vaginal sex was made. Sometimes Dugan could not remember what color Jeanine’s panties were. Other times he claimed he could remember what color they were, but then guessed incorrectly.
In the statements that included administering blows by using a tree branch, Dugan sometimes said that he threw the branch about 10 to 20 feet away, sometimes he either dropped it or threw it, and one time he said he left the branch in a ravine near the body. Sometimes he said he could not remember what he did with it. No branch with blood on it was ever found.
After the attack, he said he drove away but his car got stuck in the mud. Sometimes Dugan said he got out of the car and pushed it, while other times he said he opened the car door but stayed in the car, freeing the car by rocking it with his foot.
After the alleged attack with a tire iron, Dugan originally said he gave the tire iron and jack to a person later identified as Denise Poquette. Poquette and the rest of her family denied ever receiving the jack. Dugan then changed his story, claiming that he hid the iron and jack in their basement behind the water heater near the washing machine. This, too, was proven false. He then claimed that he left it behind the water heater, and later went to retrieve it but found it missing; thus, he did not know where it was.
Finally, Dugan’s claim that he killed Jeanine is inconsistent with a letter he wrote while in jail, where he referred to defendant and Alejandro Hernandez (a man accused of assisting defendant in Jeanine’s murder) as "those baby killers from Naperville.” Hardly the words of the man who did the killing.
Dugan’s story is more than inconsistent with itself. It is also inconsistent with the facts.
Dugan claimed that Jeanine had two coats of toenail polish on, which he remembered because her feet were beside him when he sexually assaulted her. He claimed that there was a base milky coat, and a shiny coat on top of that. However, Jeanine had no toenail polish on, whatsoever.
Dugan claimed that when he left Jeanine, she was face up. She was found face down, with her body in a condition indicating that this was how her murderer left her. Dugan claimed that when he left her, she was "possibly alive.” This demonstrates a lack of knowledge about the nature of the blows. Jeanine probably died instantly, and certainly within a few minutes of the blows. The murderer dragged Jeanine’s dead body for a distance, several minutes after she died, as shown by post-mortem scratches. Jeanine’s murderer knows that he spent a considerable amount of time handling her corpse. Brian Dugan has demonstrated that he has no such knowledge.
As previously noted at length, Dugan’s description of the inside and outside of the house is inconsistent with the facts. Briefly, Dugan incorrectly described the presence of a wrought iron fence, a chain lock on the door, closets in the front hall, and patio doors in the rec room. He could not identify where either the stairs going up or down were; he incorrectly guessed the rug color in the rec room, the general color of the rec room (bright versus dark), the type of television in the rec room, and the location of the television in the rec room. His description of Jeanine’s bedroom missed the mark in every aspect except that she had a brown dresser.
Also as previously mentioned, the screwdriver lady is one consistent element among all of Dugan’s versions of the day’s events. Yet police have never been able to find anyone in the neighborhood that could have possibly been that woman, despite an exhaustive search which included canvassing every house and interviewing people who had moved out of the neighborhood. Neighbors that had moved as far away as Florida were tracked down. No screwdriver lady was found because, as it has become evident, there is no screwdriver lady.
Despite sometimes claiming to have parked in the driveway, Dugan never saw the bright-yellow sailboat parked in the driveway, which was 8 feet high and 20 to 30 feet long.
Immediately adjacent to the Prairie Path, running the entire length of the Prairie Path, there are huge tension wire towers. These are 60 feet tall, with bases as wide as the length of a car. Dugan said that he never saw them.
There are many more inconsistencies which are not only inconsistent with the facts, but which affirmatively demonstrate that Jeanine could not have possibly been killed in any manner remotely similar to Brian Dugan’s stories. At the forefront of these is the location of the murder. Wherever Jeanine was killed, it was not on the Prairie Path. Dr. Cleveland testified that when the blows were administered more than a unit of blood (250 milliliters, the amount ordinarily given in a blood transfusion) would have immediately gushed out. Yet only a few drops of blood were found on the Prairie Path, all much smaller than a dime. This could not have possibly been where Jeanine was murdered. Dr. Cleveland also testified that the murder weapon was definitely not a tire iron, because the diameter and width of a tire iron would not match the pattern of the blows Jeanine received.
Dugan sometimes claimed that he tied Jeanine’s hands and wrapped her in a sheet and carried her out of the house. One time he said he tied her hands behind her back. However, there were scratch marks by the door made by a child’s fingers, indicating that Jeanine tried to prevent herself from being taken from the house. Further, an examination of Jeanine’s wrists revealed no ligature marks, which would have been there had her wrists been bound.
Finally, in the versions where Dugan mentioned vaginal sex, he claimed that he only attempted it unsuccessfully. However, Dr. Cleveland testified that there was full vaginal penetration. Jeanine’s murderer was far more successful than Dugan thought.
C. Dugan’s Motive to Lie
The plurality believes that Dugan’s hearsay statements should be before the jury because they possess "sufficient indicia of trustworthiness.” (162 Ill. 2d at 343.) However, a damning indication of Dugan’s supposed reliability is shown by his own characterization of his motivations in this case.
Milton Burns testified that, on November 25, 1985, he was in a holding cell with Brian Dugan. They were discussing the Ackerman murder and Dugan’s natural life sentence when Dugan told Burns that "you’ll be seeing me again.” When Burns asked what he meant by that, Dugan replied that "he was gonna mess with the State, get back at the State in any way he can. And he didn’t have nothing to worry about because he got life and all they can do is run things concurrent with him. *** [He said,] [a]nything I can do to mess with the State I’m gonna do it. He said everybody is gonna know Brian Dugan. They’re gonna see my pictures in the newspapers. I’m gonna be on the news. *** [He said,] when I get to the joint, man, I’m gonna clean death row out, everything.” Burns saw Brian Dugan on television in August 1986, in connection with his claims about the Nicarico murder. Burns realized that Dugan had made good on his threat and contacted the authorities.
Brian Dugan’s brother, Steve Dugan, also shed some light on Brian Dugan’s possible motive. Steve Dugan testified that Brian informed him that he had become a celebrity in his prison for his Nicarico statements, and that prisoners now asked for his autograph.
D. Ramifications of This Analysis
Since Brian Dugan’s statements are unquestionably false, it was an abuse of discretion to admit them into evidence. This conclusion vitiates the three errors cited by the plurality. The first error is the preclusion of evidence concerning Dugan’s other crimes as a method of both corroborating these statements and to establish Dugan’s modus operandi. However, if allowing the Dugan statements into evidence was error, defendant was not prejudiced when he was prevented from bolstering these impermissible statements. This analysis applies to the third cited error as well, the impermissible bloodhound evidence. If the Dugan statements were erroneously allowed into evidence, allowing impermissible evidence which worked solely to discredit the impermissible statements did not prejudice defendant.
Finally, this conclusion would render the improper impeachment of Erma Rodriguez a nullity. Erma Rodriguez, defendant’s cousin, was called by the prosecution for the ostensible purposes of establishing a linkage between defendant and Brian Dugan. Rodriguez had told police that, shortly after the murder, she saw defendant and Dugan together. However, at defendant’s trial she actually testified that, although she saw Cruz with a white man, he was definitely not Brian Dugan. She then denied that she had ever seen Dugan and defendant together.
The State then impeached Rodriguez with her earlier statements. It did this despite the fact that Rodriguez had not hurt its case, but rather she had only failed to help it. The plurality correctly notes that such impeachment is improper. 162 Ill. 2d at 366.
However, the State would have had no need to establish a linkage between Brian Dugan and defendant had the Dugan statements been properly excluded from evidence. Indeed, it would not at all have profited the State to try and do so had defendant been prevented from bringing this red herring into this case. Thus, under the appropriate analysis of the admissibility of Brian Dugan’s statements, this impermissible impeachment did not prejudice defendant and cannot be seen as reversible error.
III. The Other-Crimes Evidence
The plurality and the concurring Justice compound their incorrect ruling that Dugan’s hearsay statements were properly admitted by finding error with the preclusion of the evidence surrounding Dugan’s other crimes. The plurality opines that this preclusion was an abuse of discretion under both modus operandi (for the Ackerman murder) and corroboration (for the other four crimes) theories. The concurring Justice agrees with the three justices in dissent that neither modus operandi nor corroboration principles, as they are presently understood, would suggest error. However, he would find error by retroactively relaxing the standard of admissibility.
In cases "in which the defendant attempts to use a particular modus operandi as evidence that the crime was committed by another person, a separate offense is found to be relevant and admissible as proof of modus operandi only upon a strong and persuasive showing of similarity.” (People v. Tate (1981), 87 Ill. 2d 134, 141.) It is not enough that the crime charged and the other crimes have common features or marks of similarity which might be shared by many other crimes committed by other perpetrators. The logical inference that the perpetrator who committed one crime also committed another crime arises only "when both crimes share peculiar and distinctive common features so as to earmark both crimes as the handiwork of the defendant. [Citation.] There must be some distinctive features that are not common to most offenses of that type.” (Emphasis added.) People v. Kimbrough (1985), 138 Ill. App. 3d 481, 486-87.
The plurality pays lip service to this stringent standard when it acknowledges that a "high degree of identity between the other offense and the charged crime is necessary” (162 Ill. 2d at 349) and when it rejects "defendant’s assertion that [People v.] Tate [(1981), 87 Ill. 2d 134, 141] allows for a relaxed degree of identity between the crimes compared when other-crimes evidence is offered by defendant.” 162 Ill. 2d at 351.
Unfortunately, the plurality goes on to find modus operandi with the Ackerman murder on the flimsiest of factual similarities. It reasons:
"In both of Dugan’s accounts of the Ackerman and Nicarico murders, he was aimlessly driving around alone in his auto, smoking marijuana, before he encountered the female, Caucasian child-victim. In neither instance was the crime apparently premeditated or planned. In both accounts, Dugan recklessly abducted the victim during daylight hours, in full view, by perhaps placing the victim in the front, passenger-side area of his auto. In both accounts, Dugan attempted to hide or cover the victim with some type of bedding (sleeping bag or sheet). Both accounts also involved anal sex and the tying of the victim’s hands.” 162 Ill. 2d at 351.
I submit that the using of a car to kidnap girls during the day is hardly the "earmark” of any particular killer. This is not the "high degree of similarity” that is anticipated by Tate. Were this view to command a majority, and thankfully it does not, any threshold necessary for modus operandi evidence would be largely eradicated.
Further, the particulars of the two crimes vary significantly. Like its analysis of the Dugan statements, the plurality hangs its hat on general, loose-fitting facts to show similarities. It necessarily chooses to ignore the details.
These details are cogently articulated by Justice McMorrow in her own dissent (162 Ill. 2d at 434-35), but a brief description of the two accounts is worthwhile at this point. Melissa Ackerman was abducted from a public street by Dugan at a time when he was engaged in no other activity. She was abducted in front of a friend, who was also abducted at the same time but escaped. Jeanine was abducted from her house in a manner that no one could witness (not "in full view,” as suggested by the plurality), and was abducted during the course of a burglary. Melissa was never blindfolded, while Jeanine was blindfolded from the time of her abduction until her death.
While in the car, Dugan told Melissa to sit on the floor so that passers-by would not see her, and he unscrewed the passenger door lock so that she could not unlock the door. Neither precaution was taken in the Nicarico story.
The assault on Melissa involved the pair getting out of the car, Dugan taking off all of Melissa’s clothes, and Dugan completely removing his pants, shoes and socks. Only anal sex was attempted. Dugan’s alleged assault on Jeanine occurred in the car, involved only minimal removal of clothing, and (sometimes, depending on the version) involved oral, vaginal and anal sex.
Melissa was killed by drowning. Jeanine was bludgeoned to death. After killing Melissa, Dugan hid her body by putting it in a drainage ditch and covering it with rocks. No such attempt was made to hide Jeanine’s body. Melissa’s body was naked when Dugan left her. Jeanine’s body was found still clothed.
In short, the manner of the abductions, the nature of the assaults, the method of the killings, and the methods of body disposal are very different in the Nicarico and Ackerman accounts. To say that the trial court erred when it found that modus operandi was not established makes a mockery of the doctrine.
The plurality’s remaining analysis fares no better. It concludes that the remaining crimes lacked "a sufficient linkage *** to support admission *** under a theory of modus operandi, [but nevertheless] there was a sufficient degree of similarity to support their entire admission for purposes other than to show modus operandi.” 162 Ill. 2d at 352.
The "purposes other” than modus operandi, we later learn, are that the other-crimes evidence "corroborated] his statements about the Nicarico murder.” (162 Ill. 2d at 352.) In support, the plurality cites People v. King (1986), 109 Ill. 2d 514 and People v. Kokoraleis (1989), 132 Ill. 2d 235.
It should be noted that, if corroboration of the accuracy of Dugan’s confession is the rationale for allowing the other-crimes evidence in, the plurality’s analysis of the similarities between the crimes is wholly irrelevant. As argued by defendant, at issue under a corroboration theory is the veracity of the confessor. Defendant argued that the statements were admissible to show that, since Dugan was telling the truth in the other confessions, he must be telling the truth in the Nicarico confession. The merit of this argument is not dependent on the similarities of the crimes.
It should also be noted that both King and Kokoraleis are inapposite. In King, the defendant was on trial for murder and armed robbery, to which he had confessed. In that confession, he also confessed to a previous armed robbery. The State was allowed to present evidence of the previous armed robbery to show the accuracy of the confession.
Dugan’s Nicarico statements, on the other hand, did not include anything concerning the other five crimes. Those statements were entirely separate. Thus, the existence of those crimes does nothing to demonstrate the accuracy of the Nicarico story. Further, the confessions to the other five crimes were given in a quid pro quo context, where defendant gave the details in exchange for the waiver of the death penalty. He therefore had reason to be accurate. Since he received nothing for giving the Nicarico statements, he had no similar reason to remain truthful.
In Kokoraleis, defendant was on trial for the murder of Lori Borowski. Evidence of two other murders was allowed into evidence under a modus operandi theory. The State was also allowed to present evidence that he had voluntary confessed to those two other murders, to support the reliability and accuracy of the voluntariness of his confession to the Borowski confession, which defendant later claimed was coerced. There is nothing remotely similar to the Kokoraleis facts in the instant case.
Were the plurality’s suggestion that the other-crimes evidence tends to support the veracity of Dugan’s Nicarico story to command a majority, the new state of the law would be that prior truthful statements are admissible to demonstrate the truthfulness of any contested statement. This is not the law, nor should it be.
Besides corroboration, the plurality offers no other "purpose other” than modus operandi in support of allowing the other crimes evidence into evidence. As already noted, a corroboration theory of admissibility would not require a finding that the crimes were similar factually. Nevertheless, for whatever reason the plurality offers a description of the "similarities” between Dugan’s other crimes and the Nicarico murder. Thus, a demonstration that these crimes were in fact very different is appropriate.
The plurality notes:
"In each murder, Dugan tied the victim’s hands at some point. In all of the murders, Dugan availed himself of whatever physical material (water, tire iron, tree branch) was immediately at hand for use as a murder weapon. Several of the crimes, like the Nicarico murder, involved sexual assaults in an auto, blindfolding, tire irons, blows to the head, and the use of bedding materials. Two of the three murders involved blunt trauma, and two of the three involved drowning. Every crime involved the use of an auto to abduct the victim, and every crime involved the abduction of a young, Caucasian female. Although each crime does not bear the same similar feature, various similar features are repeated. The greatest similarity between the crimes, however, lies not in discrete and observable facts, but in the character of the assaults as a whole. [Citation.] The crimes appear unpremeditated, highly spontaneous, and reckless in their regard to possible apprehension.” 162 Ill. 2d at 352.
To begin, we should not take refuge in amorphous suggestions that a requisite similarity is most easily found not in discrete and observable facts but in some undefined character of the assaults taken together. This is especially true when, as in this case, an examination of the discrete and observable facts demonstrates that the crimes at issue are indeed very different.
It should also be noted that most of the similarities cited are those that Dugan’s other crimes share with each other. It is certainly true that Dugan’s other crimes share similar features. They all involved Dugan coming upon females along the road while he was driving, at which time he would abduct them and sexually assault them. These crimes occurred within a short amount of time from each other (four within a month, less than a year after the first, in a time period not proximate to the Nicarico murder).
However, the crimes are very different from the Nicarico account. The plurality’s analysis is a little like saying that the Rose Bowl, the Orange Bowl, the Sugar Bowl and the World Series are similar because they all involve either football or baseball. In suggesting their similarities, the plurality necessarily plays- fast and loose with the facts.
For instance, the plurality states "in all of the murders, Dugan availed himself of whatever physical material (water, tire iron, tree branch) was immediately at hand.” This is a convenient lumping together of water (the shared method of killing in the Ackerman and Schnorr murders) and a tire iron and tree branch (the purported weapon in the Nicarico murder) which fails to explain their similarity to each other and which ignores the fact that the water used in the Ackerman and Schnorr murders was not "immediately at hand.” Rather, Dugan had to drive toward the water, get out of the car and then walk with his victims to get to the water, where he killed them.
The plurality also reports that "several” of the assaults involved blindfolding. In fact, Dugan blindfolded only one of his five other-crimes victims. The plurality reports that "several” of the assaults involved tire irons. However, a tire iron was mentioned in only one of the other crimes, and there it was not used as a weapon.
The plurality reports that "several” of the assaults involved blows to the head. However, only one of the other crimes involved blunt trauma to the head, the Donna Schnorr murder. The source of this trauma is unclear, but Dugan did not claim to have struck her in the head. The trauma may have occurred when he pushed her in the water.
The plurality reports that "several” of the assaults involved the use of bedding materials. Depending on how broadly one defines bedding materials, either none, one or, at most, two of the other crimes involved them: the Ackerman murder involved a sleeping bag, and the rape of C.W. involved a green blanket.
The plurality reports that two of the three murders involved blunt trauma, and two of the three murders involved drowning. The blunt trauma that Schnorr suffered appears to have been coincidental to the murder; it certainly was not the cause of death or the method of killing. Mere coincidences can hardly be deemed corroborative. As far as the drowning is concerned, this goes again to show that the Nicarico murder was different from the rest of the crimes, since no drowning occurred in the Nicarico murder.
Finally, the plurality reports that the crimes all involved young, Caucasian females. However, only one of the five other victims was a child.
In sum, the plurality’s finding of reversible error in the trial court’s refusal to allow evidence of other crimes which were very different from the Nicarico crime is entirely insupportable.
IV. Conclusion
Did Rolando Cruz, whether acting alone or in combination with others, really murder Jeanine Nicarico? I express no opinion on the matter. That is a function reserved for the jury. The jurors believed that his guilt had been established beyond a reasonable doubt. They further believed that justice demanded the imposition of the death penalty on Rolando Cruz. What I do express an opinion on is that the evidence was more than sufficient to support the jury’s finding of guilt and the sentence of death. It is my further belief that the defendant received a fair trial and that the claims of error relied on by the plurality and the concurring Justice to support a reversal of the judgment in this case are wholly meritless.
Other errors were claimed by the defendant which even the majority obviously felt were so insignificant or so lacking in merit as to require no discussion. In this connection, it must be noted that there is no such thing as a perfect trial. Perfection is unattainable in this imperfect world. If perfection were the measure, all trials would be reversed in an endless loop since all trials contain some error. So far as evidentiary or procedural errors are concerned, the correct legal test is whether the errors, either singly or cumulatively, deprived the defendant of a fair trial. If the defendant was not so deprived, the verdict and judgment of the court should be affirmed. That is the situation pertaining to Rolando Cruz. His conviction and sentence are supported by the evidence and the law, and the trial was fair. Accordingly, both the guilty verdict and the sentence of death should be affirmed.
Finally, the reversal in this case is not without cost. Though the financial cost will be large, it is the least of the costs that will be incurred. The family of Jeanine Nicarico will be put through the ordeal of reliving the horrible, gruesome and shocking events of February 25, 1983. Eleven years after the murder, witnesses may have died or be unavailable. Memories will have faded. For whatever reason, witnesses may have decided to change their stories. Items of evidence may even have disappeared. New prosecutors will doubtless have to be assembled who have no familiarity with the case. More, the trial will proceed with instructions from the majority to allow into evidence not only the incompetent hearsay statements of Brian Dugan, but the supposedly corroborating (but also incompetent) evidence of Dug-an’s other admitted murders. New jurors, free from the effects of the wide media coverage of this case, will have to be selected who, in order to return a verdict of guilty, will have to reach a unanimous verdict. If a single juror can be persuaded that defendant’s guilt has not been established beyond a reasonable doubt, the result is a mistrial. Even an acquittal is a possibility.
After two verdicts of guilty and 11 years after the murder, the defendant now gets a third roll of the dice. The pressure on the prosecutor to negotiate a plea to drop the death penalty and reduce the sentence to life or something less — perhaps time served — may be irresistible. In any event, justice is the loser.
For the reasons given, I dissent.
CHIEF JUSTICE BILANDIC joins in this dissent.
it should be noted that there is no "opinion of the court.” On this point, the language this court uses when it delivers a divided opinion can use some clarification. A "special concurrence” is one where the authoring Justice joins both the opinion and the judgment. A "concurrence” is one where the authoring Justice joins only the judgment of the court.
The division of the instant case is 3 — 1—2—1. Under article VI, section 3, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 3), "the concurrence of four [justices] is necessary for a decision.” The only thing four justices agree on today is that reversal is necessary. In terms of precedent, none of the opinions filed in this case has the force of law.