People v. Boyle (161 Ill. App. 3d 1054, 1987)

JUSTICE LEWIS

delivered the opinion of the court:

The defendant, Barbara Jean Boyle, was charged by indictment with three counts of murder in the deaths of her husband, Ronald Gusewelle, and his parents, Arthur and Vernita Gusewelle. A jury found her guilty of the murder of her husband and not guilty of the murders of his parents. The trial court denied her post-trial motion for a new trial and sentenced her to a term of 50 years in the Illinois Department of Corrections. She appeals, presenting 14 issues for our review: (1) whether the trial court erred in denying her motion to dismiss “In View Of The Pattern Of Highly Improper Conduct By The Prosecution”; (2) whether the trial court erred in denying her motion to dismiss “Despite Extensive And Prejudicial Pre-Indictment Delay”; (3) whether the trial court erred in denying defendant’s motion for relief from pretrial publicity “Where Pretrial Polling And Jury Voir Dire Indicated That The Community Had Been Significantly And Negatively Affected By Pervasive Pretrial And Trial Publicity”; (4) whether the trial court erred in excluding from evidence the favorable results of a polygraph examination administered to the defendant, “As It Was Conclusively Proved That Such Examinations Are Reliable And Do Not Impinge On The Function Of the Jury; And Whether Such Exclusion Violated The Defendant’s Right To Due Process Under The Illinois And United States Constitutions”; (5) whether the defendant’s due process rights under the United States and Illinois constitutions were violated “By the State’s Failure To Abide By An Agreement Not To Prosecute Based On Her Submission To A Successful Polygraph Examination”; (6) whether the defendant’s due process rights were violated because the testimony of the prosecution’s chief witness was “Secured By Means Of An Impermissible ‘Contingent’ Agreement And The Trial Court Erred In Denying A Motion To Exclude Said Testimony”; (7) whether the trial court erred in admitting hearsay statements “Because Those Statements Did Not Meet The Requirements For Admissibility Under The Co-Conspirator’s Declaration Exception To The Hearsay Rule And The Admission Of These Statements Violated Defendant’s Right Under The Confrontation Clause”; (8) whether the trial court erred in allowing “ATF Agent McGarvey To Testify As To Statements Allegedly Made By Co-Defendant Handy Where Said Statements Were Not Provided To The Defense Prior To Trial Although Specifically Requested”; (9) whether the trial court erred in allowing “ATF Agent McGarvey To Testify As To His Agency’s Opinion Or Conclusion Regarding Defendant’s Guilt And Said Testimony Deprived Boyle Of A Fair Trial”; (10) whether statements made by Lori Elam, since deceased, were improperly excluded as hearsay “Where Those Statements Fell Under The Statements Against Penal Interest Exception To The Hearsay Rule and Said Exclusion Violated Defendant’s Right To A Fair Trial”; (11) whether the trial court’s failure to give a jury instruction “Requested By The Defendant Violated The Defendant’s Constitutional Right To Due Process And Deprived Her Of A Fair Trial”; (12) whether the defendant’s right to due process was violated because the jury returned a verdict based on insufficient evidence; (13) whether the trial court improperly denied the defendant’s motions for mistrial and new trial on the grounds of prosecutorial misconduct; (14) whether the sentence of 50 years is unduly harsh.

To facilitate understanding of some of the issues the defendant raises concerning pretrial matters, a thumbnail sketch of the facts of the case is appropriate at this juncture, although a fuller statement of the evidence adduced at trial appears below. We note that the record on appeal in this case consists of more than 5,000 pages. At trial the State put on evidence to show that the defendant, in conjunction with Glennon Engleman, planned the murder of her husband, Ronald Gusewelle, in order to obtain the proceeds of numerous insurance policies on his life, many, if not most, of which she herself purchased through the mail. The defendant and Ronald Guse-welle were married on May 28, 1976. Upon his death on March 31, 1979, at the age of about 33, 14 insurance policies on his life were in effect, the proceeds of which amounted to approximately $194,000. Nine of the policies named the defendant as the beneficiary; five of the policies were for credit life insurance. The State sought to show that after having planned the murder of Ronald Gu-gewelle, but prior to its occurrence, the defendant learned of the relative wealth of his parents, and, together with Engleman, planned their murders in order to augment Ronald’s estate. Arthur and ^Vernita Gusewelle were murdered on November 3, 1977. The net estate of Arthur Gusewelle, who briefly outlived his wife, amounted to $522,000 after taxes and costs and was divided equally between Ronald and his brother, Richard Gusewelle. The net value of Ronald Gusewelle’s estate was approximately $597,000. The defendant appears to have inherited his entire estate pursuant to the terms of his will, which is in evidence. The principal witness for the State was Robert Handy, who testified pursuant to a plea agreement concerning his part in the murders of the three Gusewelles. According to his testimony, they had each been shot by Glennon Engleman. The State sought to show that Engleman, who did not testify, had received compensation from the defendant for his part in the slayings. One of the witnesses called by the defendant was Andre Jones, who, while awaiting sentencing upon three convictions of murder unrelated to the three Gusewelle murders, had confessed to having killed Ronald Gusewelle. Jones later recanted his confession, indicating that he had obtained information about the murder of Ronald Gusewelle in part from Robert Miller, a deputy sheriff with the St. Clair County sheriff’s department. A videotape of Jones’ retraction was played to both the grand and petit juries, and a transcript of the videotape recording is in evidence. In it, Jones stated that Detective Miller, to whom he had made the confession, had threatened him and had furnished him not only with police and autopsy reports concerning the death of Ronald Gusewelle that had enabled him to confess to the slaying but also with money and “Valiums.” Jones indicated further in the video-taped retraction that he had obtained at least some of the same information from his attorney at the time, Robert Gagen. Robert Miller testified at trial but not before the grand jury. He denied having given any such information to Andre Jones and denied having threatened or induced him to confess. Robert Gagen testified at trial that he had received such police reports through discovery prior to meeting with his client in anticipation of a hearing with respect to the imposition of the death penalty.

On August 9, 1984, the defendant was charged by indictment, subsequently amended, with committing the murders of Arthur, Vernita, and Ronald Gusewelle. On October 30, 1984, the defendant filed a motion for relief from the effects of pretrial publicity, asking the court, inter alia, to distribute a detailed questionnaire to prospective veniremen in Madison County “in order to ascertain the extent of bias which exists with regard to the instant case.” The defendant asked the court to fashion a remedy to counter any bias it might determine to exist, including dismissal of the indictment or change of venue. On December 7, 1984, the defendant filed an “Omnibus Motion to Dismiss Indictment,” stating as grounds that her rights to a fair trial and an impartial jury under the fifth, sixth, and fourteenth amendments to the Constitution of the United States and under the laws of the State of Illinois had been abrogated by the misconduct of the State’s Attorney and that the State’s Attorney had abused the grand jury process by failing to present “clearly exculpatory evidence to the grand jury which returned the Indictment,” by having had improper contact with the grand jury foreman and two other members of the grand jury, by having presented extraneous material to the grand jury, by having used the grand jury “as a discovery device to prepare for the pending trial,” and by having breached “the veil of secrecy in releasing to the public and press matters which were before the grand jury.” The defendant stated further in the motion that the State’s Attorney and his agents had improperly commented to the press and public concerning the case “in order to inflame and prejudice prospective jurors” and that “certain evidentiary matters of a highly prejudicial nature were purposely ‘leaked’ to the press prior to the completion of the grand jury proceedings in conjunction with the effort to prejudice the case.” In further support of the motion the defendant said:

“The State’s Attorney combined with the United States Attorney for the Southern District of Illinois to deprive the Defendant of her right to extradition proceedings in the State of Florida where she was arrested. The United States Attorney, at the apparent bidding of the State’s Attorney, utilized a federal grand jury to return an indictment against the Defendant so that she could be removed from Florida without the necessity of extradition. Upon the Defendant’s return to the District of Southern Illinois, the federal indictment was dismissed and she was released to the Madison County authorities.”

The defendant stated also that the “extraordinary delay between the occurrence of the offenses alleged in the Indictment and the return of said Indictment was unreasonable and unnecessary and has severely prejudiced the Defendant’s defense and constitutes a denial of her right to due process.”

On February 21, 1985, the trial court conducted an extensive hearing on the defendant’s omnibus motion to dismiss and her motion for relief from the effects of pretrial publicity. The defendant called several witnesses to testify, including Donald Weber, the State’s Attorney at the time in question whose conduct was addressed by the defendant’s omnibus.motion. A market research manager testified for the defendant concerning the results of a survey of 402 registered voters of Madison County. The survey was conducted for the defendant to determine opinions about and awareness of this case among registered voters in Madison County. Another of the defendant’s witnesses was Robert Miller, who testified that he had not provided Andre Jones with information concerning the death of Ronald Gusewelle or in any way coerced the confession from him. Testifying for the State at the hearing was Dennis Kuba, a special agent with the Illinois Division of Criminal Investigation, who stated that he and Deputy Donald Spaul had interviewed Robert Miller on September 5, 1984. According to Special Agent Kuba, Robert Miller had told them that he had had two interviews with Andre Jones, during the first of which “Andre Jones verbally admitted to the murder of a white subject at Coleman’s Plaza in East St. Louis.” Robert Miller had asked Detective Stone of the East St. Louis police department if he was familiar with such a murder. Detective Stone advised Detective Miller that “a white person by the name of Ronald Gusewelle had been murdered by — in Coleman’s Plaza and his body had been discovered there.” Detective Miller recalled, according to Special Agent Kuba, having read newspaper articles about the murder of Ronald Gusewelle following his conversation with Detective Stone so that “when he went back to reinterview Andre Jones he was somewhat familiar with that investigation.” Detective Miller had stated in the interview with Special Agent Kuba and Deputy Spaul that he might have “inadvertently surrendered some information to Andre Jones during the interview.”

In an order entered March 4, 1985, the trial court stated with regard to the defendant’s motion for relief from pretrial publicity that the courts in Illinois have indicated a preference for delaying the decision as to a change of venue until jury voir dire. The court stated further that the defendant had not demonstrated sufficient cause for departing from the traditional practice of using jury voir dire as the best test for determining whether a defendant could obtain a fair trial in that county and therefore denied her request for a change of venue at that time, adding that the request might be renewed if it became appropriate following voir dire of the jury. In the order of March 4, 1985, the court, after careful consideration evident in the order, denied the defendant’s omnibus motion.

In her brief the defendant contends that the prosecution abused the grand jury process by failing to present to the grand jury exculpatory evidence, namely, Detective Miller’s statements that he did not provide Andre Jones with information concerning the death of Ronald Gusewelle or in any way coerce a confession from him. The defendant asserts in her brief that “Detective Miller’s testimony would have significantly affected the grand jury’s evaluation of the retraction.” Addressing the omission of testimony by Detective Miller before the grand jury, the trial court stated in its order denying the defendant’s omnibus motion that the matter

“must be viewed in the context of the totality of the evidence that was before the Grand Jury. When all of that evidence is considered, and when it is remembered that the Grand Jury was making only a probable cause determination, this Court cannot find that the defendant suffered actual and substantial prejudice by the failure of the prosecutor to present the evidence in question.”

As the supreme court stated in People v. Creque (1978), 72 Ill. 2d 515, 527, 382 N.E.2d 793, 798, cert. denied (1979), 441 U.S. 912, 60 L. Ed. 2d 384, 99 S. Ct. 2010, “A defendant may not challenge an indictment on the ground that it is not supported by adequate evidence. (People v. Jones (1960), 19 Ill. 2d 37.) Guilt or innocence is to be determined at trial.” Traditionally, an indictment has not been quashed because of a lack of proper grand jury evidence unless all evidence before that body has been subject to suppression. (People v. Mack (1982), 107 Ill. App. 3d 164, 437 N.E.2d 396.) There is no suggestion of that here. However, even if a defendant could challenge an indictment on the ground of inadequacy of evidence, the instant record would not support such a chai-lenge. Although we have a part of the transcript of proceedings before the grand jury when that body heard evidence concerning the Gusewelle murders, we do not appear to have the report in its entirety, as the trial court seems to have had. Hence, we have no basis for disagreeing with the trial court’s conclusions as set forth above. We do, however, have the transcript of the entire proceedings before the petit jury, before whom Robert Miller testified essentially as he had testified at the hearing on the defendant’s omnibus motion to dismiss. Nevertheless, the petit jury found the defendant guilty of the murder of Ronald Gusewelle beyond a reasonable doubt, a far more exacting standard of proof, needless to say, than that of probable cause. There is nothing in this record to suggest that, had the grand jury heard the testimony of Robert Miller as it was given at the hearing on the defendant’s omnibus motion to dismiss and at trial, the evidence upon which to make a determination of probable cause would have been insufficient. Since Detective Miller’s testimony plainly did not affect significantly in the defendant’s favor the petit jury’s evaluation of Andre Jones’ retraction, we think — assuming that an indictment might be so challenged — that her point concerning the potential impact upon the grand jury is not well taken.

With respect to the defendant’s contention concerning the prosecutor’s contact at lunch on apparently two occasions with the grand jury foreman and other members of the grand jury, the trial court stated in its order as follows:

“The defendant has also complained that the prosecutor had improper contact with the Grand Jury foreman and other members of the Grand Jury. This allegation has been proved by the evidence, but the defendant has again failed to show how she suffered actual and substantial prejudice. Absent that showing, the defendant is not entitled to a dismissal. The Court allowed inquiry into this area by examination of Mr. Weber during the hearing on the Motion to Dismiss, and Judge Romani had previously held an in camera inquiry of the Grand Jury concerning this matter. The Court has considered the evidence at that hearing and received the Grand Jury transcript, and is satisfied that the defendant was not prejudiced.”

As we have indicated, the record on appeal includes part of the proceedings before the Madison County grand jury, including that of September 6, 1984, when Judge Romani examined the grand jury concerning these allegations. His examination of the grand jurors makes clear beyond question that the defendant suffered no prejudice as a result of any unauthorized contact between the prosecutor and the grand jurors.

The defendant maintains that “the trial court erred in denying [her] motion to dismiss the indictment on the ground that [she] has not demonstrated sufficient prejudice, because the State’s Attorney’s conduct vitiated the indictment per se, and thus, no prejudice need be shown.” A trial court has inherent power to dismiss a charge when due process so requires (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244), but this should rarely be done (People v. Mack (1982), 107 Ill. App. 3d 164, 437 N.E.2d 396). In Illinois, to support a dismissal of a charge, prosecutorial misconduct must result in actual and substantial prejudice to a defendant. (People v. Mack (1982), 107 Ill. App. 3d 164, 437 N.E.2d 396.) Nevertheless, the defendant invites us to adopt a rule of per se invalidation— which we decline to do — principally on the basis of United States v. Mechanik (1984), 735 F.2d 136, the holding of which the Supreme Court ultimately rejected in United States v. Mechanik (1986), 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938. In Mechanik two witnesses testified simultaneously before the grand jury in violation of Federal Rule of Criminal Procedure 6(d). The court of appeals rejected the argument that defendants must show that a Rule 6(d) violation prejudiced them before an indictment may be dismissed. A divided court of appeals sitting en banc agreed. (United States v. Mechanik (1985), 756 F.2d 994.) In Mechanik the defendants had not learned about the joint testimony until the trial had begun. The trial court took the motion to dismiss the indictment under advisement until the conclusion of the trial, the petit jury returned a verdict of guilty beyond a reasonable doubt, and the trial court subsequently denied the defendant’s motion for dismissal of the indictment. The Supreme Court held that “however diligent the defendants may have been in seeking to discover the basis for the claimed violation of Rule 6(d), the petit jury’s verdict rendered harmless any conceivable error in the charging decision that might have flowed from the violation.” (475 U.S. 66, 73, 89 L. Ed. 2d 50, 58, 106 S. Ct. 938, 943.) The court reasoned that “the petit jury’s subsequent guilty verdict not only means that there was probable cause to believe that the defendants were guilty as charged, but that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury’s verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.” (475 U.S. 66, 70, 89 L. Ed. 2d 50, 56, 106 S. Ct. 938, 942.) In the instant case, the petit jury’s verdict aside, Judge Romani’s in camera examination of the grand jurors displayed that error on the part of the prosecutor was, like that in Mechanik, harmless, having caused no prejudice to the defendant.

The defendant contends similarly that the prosecutor’s presentation of “Improper and Inflammatory Material to the Grand Jury” requires dismissal of the indictment in the absence of resultant prejudice to the defendant. The material to which she refers is the presentation to grand jurors of 96 slides, one of which was a slide of the elder Gusewelles’ residence. Of this presentation the trial court stated in its order:

“The defendant complains that former State’s Attorney Weber presented improper material to the Grand Jury, and the evidence sustains this allegation. It is undisputed that former State’s Attorney Weber presented a certain photographic slide show to the Grand Jury, which was the same slide show he presented in other settings to potential voters in his reelection compaign [sic]. At the request of counsel, the Court has now viewed the slide presentation, although without the benefit of the explanatory remarks from the former prosecutor which accompanied the presentation to the Grand Jury. Most of the slides depict various crime scenes from disposed [sic] cases on which the Grand Jury would not be hearing evidence. The only slide pertaining to the Gusewelle case was an exterior view of a residence. There were also several slides which memorialized high praise for the former prosecutor, and some which depicted him receiving some sort of ‘awards.’

While the slide presentation might have had some educational value for the Grand Jury, if handled properly, it was mainly an attempt of the former State’s Attorney to aggrandize himself in the eyes of the Grand Jury. As such, it was highly improper. There is, however, no evidence that the Grand Jury was thereby pressured or influenced to return an indictment against the defendant, and a due process violation has not been established.”

Former State’s Attorney Weber testified as follows about the slide in question and his comments about it: “The slide was a slide of Art and Vernita Gusewelle’s house, and it precedes the home — a picture of the Kubeys (ph) down in Granite City, and I just say after we go though a number of murders that we have solved, I said there are still some murders that aren’t solved, and we hope some of these new scientific methods will help us be able to solve them.” Defendant argues, “As with the other grounds raised above, it is the Defendant’s contention that the action of the State’s Attorney requires a per se dismissal of the indictment without reference to any actual prejudice suffered by the Defendant. Therefore, the trial court improperly denied the Defendant’s motion to dismiss.” We disagree and, as we have already stated, decline to adopt the per se rule defendant proposes. The defendant having suffered no prejudice as a result of the prosecutor’s misconduct, the trial court did not err in denying her motion to dismiss on that basis.

The defendant asserts that her motion to dismiss the indictment ought to have been granted because of collusion between former State’s Attorney Weber and Federal authorities in order to deprive her of her right to an extradition hearing in Florida. As the State points out, the only person to testify concerning this matter was former State’s Attorney Weber, who indicated that the Federal indictment had been obtained somewhat hastily in order to avoid a potential problem arising out of the running of a statute of limitations. Contrary to the defendant’s claim of collusion, the witness testified that the Federal indictment had not been obtained for the purpose of avoiding extradition proceedings. Thus, the trial court observed correctly in its order that “[t]he evidence simply does not sustain this claim.”

Although the defendant makes other contentions with respect to the first issue she raises for review concerning “The Pattern Of Highly Improper Conduct By The Prosecution,” it is not necessary to address them in detail. We have considered each of them and find no basis in either the record or the law for disturbing the trial court’s ruling in this regard denying her omnibus motion to dismiss the indictment.

We turn to the second issue defendant raises, whether the trial court erred in denying her omnibus motion to dismiss the indictment despite extensive and prejudicial preindictment delay. In People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244, which considered the question of whether preindictment delay in three cases, consolidated on appeal, was so prejudicial as to be a denial of due process, the supreme court set forth the requirement that, where there has been a delay between an alleged crime and indictment or arrest or accusation, the defendant must come forward with a “clear showing of actual and substantial prejudice” (emphasis in original) (67 Ill. 2d 449, 459, 367 N.E.2d 1244, 1248). If the accused satisfies the trial court that he or she has been substantially prejudiced by the delay, the court said, the burden shifts to the State to show the reasonableness, if not the necessity, of the delay. “If this two-step process ascertains both substantial prejudice and reasonableness of a delay, then the court must make a determination based upon a balancing of the interests of the defendant and the public. Factors the court should consider, among others, are the length of the delay and the seriousness of the crime.” (67 Ill. 2d 449, 459, 367 N.E.2d 1244, 1248.) In the trial court’s order of March 4, 1985, it stated:

“Under People v. Lawson 67 Ill. 2d 443 [sic], which authorizes a dismissal on due process grounds as the result of pre-indictment [sic] delay, the defendant must come forward with a clear showing of actual and substantial prejudice. This the defendant has failed to do. Even assuming prejudice, the State has met its burden of showing the reasonableness and necessity of the delay. It is clear that until certain evidence became available to the State in the spring or early summer of 1984, this case was not prosecutable. Applying the test mandated by Lawson of balancing the interests of the defendant and the public, and considering such factors as the length of the delay and the fact that defendant is charged with three murders, the Court finds that the defendant is not entitled to a dismissal based on a denial of due process because of pre-in-dictment [s-ic] delay.”

The defendant disputes the trial court’s finding that she was not prejudiced by the delay and, stating that the trial court did not reach the issue of whether the delay was reasonable, maintains that the prosecution did not and could not meet its burden under Lawson of showing that the delay was either reasonable or necessary. She argues that “by failing to conduct the balancing test mandated by Lawson, the trial court improperly denied the Defendant’s motion to dismiss.” She contends that she demonstrated actual and substantial prejudice inasmuch as “the testimony of an extremely important witness, Lori Elam, was lost to the defense due to Elam’s death and the unique Illinois rule regarding the admissibility of statements against penal interest. If the prosecution had not been delayed, Elam’s exculpatory evidence would have been available to the defendant.” However, at the hearing on her omnibus motion to dismiss the indictment, the defendant appears to have put on no evidence and made no offer of proof concerning Lori Elam. At no time does the defendant indicate when Elam died. Furthermore, former State’s Attorney Weber testified concerning facts relevant to the delay. Andre Jones, who had confessed to the killing of Ronald Gusewelle in September of 1979, maintained as late as May of 1984 that he was responsible for Ronald Gusewelle’s death. Later, in May of 1984, Jones recanted the confession. The State’s Attorney’s office first received reports in February or March of 1984 from the Federal Bureau of Alcohol, Tobacco and Firearms concerning “various crimes *** committed by a person and others, by the name of Engleman.” The witness stated that he had been informed that Robert Handy had been approached by Federal authorities about testifying against Glennon Engleman but that Handy had “refused to deal.” In June or July of 1984, the witness said, he had, with police officers, approached Handy, who agreed to give a statement concerning the Gusewelle murders and to testify. The witness stated that, “[u]ntil Handy agreed to testify, we didn’t have sufficient evidence to base an indictment, I don’t think.” The record in the instant case supports the trial court’s conclusions and refutes- the defendant’s contentions. Ruling in accord with the requirements of People v. Lawson, the trial court did not err in denying the defendant’s motion to dismiss the indictment on the basis of preindictment delay.

With respect to the third issue the defendant presents for review, concerning the trial court’s denial of her motion for relief from pretrial publicity, she maintains that pretrial polling and jury voir dire indicated that the community had been significantly and negatively affected by pervasive pretrial and trial publicity. She argues that, “notwithstanding the self-serving assertions of the prospective jurors, [the defendant was] patently unable to obtain a fair trial in Madison County and that the trial court erred in denying Boyle’s motion for change of venue, request to be permitted to send confidential questionnaires to prospective jurors, and motion for new trial.” As the trial began, following voir dire, the defendant renewed her motion for change of venue. In denying the motion the trial court made the following observations:

“The Court in the Jury selection process was generous in the exercise of excusáis for cause, and the Court at no time denied the defense a challenge to a juror for cause. The Court notes further that the defense did not exhaust all perempto-ries. We went through 59 jurors to get the regular panel of 12. Of those included on the Jury, there do not appear to be any who have been exposed to any prejudicial or inflammatory matter. Most had only, if any knowledge at all, only a general knowledge of what the Defendant was charged with and the names of the victims. Counsel for both sides were given the opportunity to explore fully any knowledge the jurors might have had about this case and any opinions they might have reached.

The Court is satisfied that these jurors will give the the [sic] Defendant a fair trial.”

The report of the proceedings of voir dire is included in the record on appeal. We have read the entire transcript. The comments of the trial court are a fair and accurate assessment of the voir dire conducted in this case, which was extensive, careful, and thorough.

The general rule in Illinois is that a defendant is entitled to a change in venue when it appears that there are reasonable grounds to believe that prejudice against the defendant actually exists and that by reason of this prejudice there is a reasonable apprehension that defendant cannot receive a fair and impartial trial. (People v. Knippenberg (1979), 70 Ill. App. 3d 496, 388 N.E.2d 806.) The decision whether to grant a change in venue is discretionary with the trial court, and, absent an abuse of that discretion, the decision will not be reversed. (People v. Knippenberg (1979), 70 Ill. App. 3d 496, 388 N.E.2d 806.) There is nothing in the instant record to suggest that the jurors selected were anything less than fair and impartial. In Knippenberg, as in the case at bar, a poll had been conducted to determine the attitudes of voters in the county in question. There we said:

“That defendant can point to potentially harmful publicity within a community as indicated by the survey does not, standing alone, establish proof of community prejudice to warrant a change in the place of trial.

* * *

The most valuable tool in determining local attitudes towards a defendant is found in the examination of prospective jurors in the voir dire.” (70 Ill. App. 3d 496, 499, 388 N.E.2d 806, 809.)

That examination gave no cause for apprehension that the defendant could not receive a fair and impartial trial in Madison County, and the trial court did not abuse its discretion in denying the defendant’s motion for a change of venue following voir dire or err in denying her earlier motion for relief from pretrial publicity.

Defendant’s fourth assignment of error is the trial court’s exclusion from evidence of the favorable results of a polygraph examination of the defendant. In Illinois polygraph evidence is inadmissible. (People v. Baynes (1981), 88 Ill. 2d 225, 430 N.E.2d 1070.) We are without power to overrule the Supreme Court of Illinois and, therefore, do not address the issue further.

With respect to the fifth issue she raises for review, the defendant maintains, in reliance upon People v. Starks (1985), 106 Ill. 2d 441, 478 N.E.2d 350, that her right to due process was violated by the State’s failure to abide by an agreement not to prosecute based upon her submission to a successful polygraph examination. In Starks, which was decided shortly after the trial in the instant case was concluded, the supreme court held enforceable an agreement between the State and a defendant requiring the State to dismiss its case against the defendant if the defendant took and passed a polygraph examination. The defendant in Starks contended that a Lake County assistant State’s Attorney had agreed to dismiss the charge of armed robbery against him if he submitted to and passed a polygraph examination conducted by a Libertyville police lieutenant, Danny McCormick. The polygraph examination was given by the police officer named, who found the defendant truthful in his denial of any knowledge of or involvement in the armed robbery. The cause in Starks was remanded for an evidentiary hearing to determine whether, in fact, such an agreement existed.

In the instant case the trial court permitted the defendant, following trial, to file and argue a supplemental motion to dismiss the indictment based upon an agreement similar to that in Starks that she alleged existed between her and the State. The parties stipulated that the report of Detective Robert Hertz, attached to the motion, represented the relevant events that had transpired. According to the report, on April 16, 1979, the defendant, accompanied by her attorney at the time, Gerald McGivern, was interviewed by Detective Hertz in the office of Assistant Madison County State’s Attorney Robert Troné, who was present'. The officer’s report of the same date states in pertinent part:

“She [defendant] was then asked if she would submit to a polygraph examination in order to check her truthfulness on this statement and McGivern immediately replied ‘no.’ This officer then tried to tell her that this examination could rule her out completely as a suspect in this investigation and at that time McGivern told this officer, ‘she is not taking a polygraph, don’t ask the question again.’ This officer did not inquire any further on this point, at this time.”

On April 23, 1979, Gerald McGivern sent to Robert Troné a copy of a report of a polygraph examination of the defendant prepared by Dwight Whitlock, a licensed polygraph examiner. In his accompanying letter her attorney asked that Robert Troné file the report and not release to anyone the fact that the defendant had taken the test without first discussing the matter with him. In denying the defendant’s motion to dismiss the indictment on the basis of this alleged agreement, the trial court observed:

“[The defendant] refused to accept the State’s offer. She later made a counter offer, and the Court can not imagine that had she flunked that test that she would have voluntarily disclosed that fact to the State. As the Court sees it, she had nothing to lose in taking the polygraph test without the State’s knowledge. There was no mutuality of obligation, and I don’t think the facts of this case present the type of public policy agreement for enforcing an agreement made by the State to which the Starks or Stark case addresses itself.”

Defendant’s assertions to the contrary, no mutuality of agreement existed between the State and the defendant. The defendant’s attorney had responded unequivocally that the defendant would not take a polygraph examination and was not to be asked to do so again. Shortly thereafter, entirely without the knowledge of the State, the defendant took a polygraph examination conducted by a private examiner of her choice. The State had no opportunity in advance of the test given to defendant to address matters relevant to the reliability of that particular test. The results, favorable to the defendant, were forwarded to the State. There was no obligation on the part of the defendant to make known to the State at any time the results of the test had they been unfavorable to her. Thus, unlike the defendant in Starks, the defendant here did not surrender her fifth amendment privilege against self-incrimination. Under the circumstances presented, we do not think that an agreement of the kind held enforceable and binding on the State in Starks existed in the instant case. Accordingly, the trial court did not err in denying the defendant’s motion to dismiss the indictment on that basis.

Before we address the other issues the defendant raises, we set forth further relevant evidence adduced at trial, which began on April 1, 1985, and ended on April 14, 1985. The evidence showed that sometime after 6 p.m. and before 6:50 p.m. on November 3, 1977, Arthur Gusewelle was shot twice in the back of the head and Vernita Gusewelle was shot three times in the back of the head in their farm home in Hamel. There was no evidence of a forced entry. Vernita’s body was found by medical personnel face down on the kitchen floor. Clogged by blood, her watch had stopped at 6:50 p.m. Arthur Gusewelle expired at 9:27 that evening after having called the operator for help and stating he had been “robbed.” When medical personnel arrived, he indicated he had been robbed by “a couple of guys.” The witness, who had attended him, indicated that Arthur’s speech was “so slurred you couldn’t hardly understand him.” A Madison County deputy sheriff counted five .22-caliber ammunition casings in the area where Vernita’s body was found. The house had been ransacked extensively, but police could never establish that anything was missing.

Ronald Gusewelle farmed part time and worked at the Amoco refinery in Wood River. On March 31, 1979, he worked the evening shift there and left the plant at about 10:50 p.m., turning apparently in the direction he usually turned in order to reach his home, also in Hamel. At 7 a.m. on April 1, 1979, the defendant called the local police inquiring about her husband who, she said, had not returned home from work. At about 7 p.m. on April 4, 1979, Ronald’s body was found on the passenger side of the backseat of the automobile he had driven to work on March 31. The automobile, a gray, two-door, 1972 Camaro, was found parked near a cyclone fence on the west side of the parking lot of Coleman’s Plaza, formerly the Holiday Inn, in East St. Louis, where it had been, according to witnesses, since about March 31. Over the upper part of the body was a brown garbage bag and two towels. A package of prophylactics was found in a pocket of the blue jeans as well as some change. The victim’s wallet and wristwatch were missing. On April 5, 1979, Dr. Steven Nuernberger performed an autopsy upon the body, which was in a state of moderate decomposition. The autopsy revealed a gunshot wound to the chest about five inches from the base of the throat. The path of the bullet was from “front to back, or anterior to posterior and slightly downward.” The bullet had lodged in the victim’s esophagus. Further, there was “large blunt trauma” to the left side of the skull of the deceased from which the brain extruded. Above the defect in the scalp was an “X”-shaped laceration of the scalp. The victim’s left leg had sustained a “green stick,” or twisting, fracture 2xk to 2>xk inches above the ankle. The pathologist was of the opinion that the gunshot wound to the chest had occurred first because there was no tissue reaction, that is, swelling, to the head or leg injuries, indicating a lack of sustained blood pressure at the time the head and leg injuries occurred. The pathologist described death as secondary to cardiac tamponade, which occurs when the fibrous sac surrounding the heart fills with blood. The path of the bullet indicated that the weapon had been fired at an angle or that the decedent was leaning over to some extent when the bullet struck him. The witness said that the victim could not have remained standing for more than 13 seconds after he was shot and that he was dead or dying when the other injuries were inflicted. The head wound had been caused by being struck with a blunt object that had. “at least one curvilinear margin which is outlined by the posterior curvilinear defect in the skull.” The pathologist stated, “[A]ny object that has a curved surface of that diameter or a 2V2 inch diameter could do it. It might be any one of a thousand objects.” The witness testified further, “The X-shaped laceration above the large defect is also — the X shape just reflects tissue crushing trauma. The X shape does not necessarily relate whatsoever to the shape of the object.” He added, “Any flat surface may create an X-shaped laceration in the scalp, sir, if I pop you hard enough.” There were abrasions on the victim’s back that had occurred after death.

Robert Handy testified for the State that he had made an agreement on July 24, 1984, with the State of Illinois that if he “cooperate^] with them and pleads guilty to conspiracy” to commit murder on three separate charges concerning the murders of Arthur, Vernita, and Ronald Gusewelle, he would receive the maximum sentence of 14 years for the offenses. The plea agreement is in evidence and states that the 14-year term of imprisonment is to run concurrently with his “present term of incarceration for Mail Fraud” and that “[t]he People agree that Handy be given credit for time served from February, 1980 to present time.” The agreement provides further that “[t]he Defendant, Robert Handy, agrees to testify freely and truthfully in all proceedings against any and all ather [sic] persons who are charged in connection with the murder of Arthur, Vernita and Ronald Gusewelle” and that “[i]n the event that the Defendant, Handy, does not cooperate completely and fully or does not testify truthfully in any proceedings related to this investigation this agreement is void and the plea entered pursuant to this agreement is to be withdrawn by the consent of all parties hereto.” The agreement is signed by Don Weber as State’s Attorney, by Robert Handy, and by Marty Hadigan, Handy’s attorney.

Handy testified that he had known- Dr. Glennon Engleman, a dentist, for about 25 years and had met the defendant in 1970 or 1971, when she was recently divorced. He said that he and Engle-man had gone to her home in Wood River and disassembled a child’s bed. Handy had had occasion to be with the defendant at other times and had seen her go into Engleman’s dental office on two occasions, one time prior to the death of the elder Gusewelles and another time after their deaths and prior to the death of Ronald Guse-welle. He testified further that on November 3, 1977, “just before sunset,” he and Engleman had driven up “into the back of this farm house.” Engleman had gloves with him and carried Handy’s attache case containing “a rope and a .22 target pistol.” He described the weapon as an automatic “rifle pistol” with a long barrel. Handy remained in the car and kept the motor running. He saw two people at the back door, heard five to seven gunshots, which he was not counting, and saw Engleman emerge from the house five to seven minutes later. The two left, and Engleman emptied the rope and pistol out of the attache case.

Handy testified that on March 31, 1979, Engleman had come to Handy’s house in the St. Louis area at about 8:30 p.m. Engleman had with him two “sets” of gloves, a plastic bag, and a .38 pistol with a two-inch barrel, bluesteel with a pearl handle. They went in Engleman’s car to the parking lot of a shopping center that included a Venture store and waited about 10 to 15 minutes, when the defendant drove up and Engleman and Handy got into her car. Handy lay down on the backseat of her car, and Engleman got in the front seat and “got down, so it appeared that there was only one *** person in the automobile.” They arrived at the defendant’s residence at about 11 p.m. The three got out of the car after she had parked it in the garage in the stall to the right, as one looks at the garage from the outside. The defendant went into the house; Handy and Engleman remained in the garage in the dark with the doors closed. About 10 to 15 minutes later a car came into the driveway and approached the garage. The driver of the car got out and raised the garage door on the left side of the garage, whereupon Engleman shot him “in the chest, in the heart” with the .38 caliber pistol and then struck him in the head “three or four times, maybe five times” with a two- or three-pound, short-handled hammer, commonly referred to as a hand sledge. Handy thought the victim had stepped inside the garage just before or after being shot. When the victim fell on the floor, Handy testified, “Engleman yelled at Barbara [the defendant], told her to bring some towels, and Engleman started dragging the body back to the car that he drove in with, back to the, it was a Camaro.” The defendant, he said, “came out of the house with the towels and was picking up the blood with the towels.” He said that “some of Ron’s blood” was on the floor at the far left side of the left garage door, the area the defendant was cleaning with the towels. While the victim was on the floor of the garage, Engleman asked Handy to help him put the body of the victim, a large man, in the backseat of the Camaro, which Handy described as white. Having dragged the body on its back, holding it under the armpits, Engleman was putting the body into the passenger side of the car. Handy said, “So I went on the left side of the automobile and stepped inside the car, and I held him by the shoulders and the arms, and I pulled him in. Engleman lifted his legs up from the outside.” “When we was leaving,” Handy said, “Dr. Engleman told her [defendant] to wait, I remember what he said; he said to wait a couple of hours and then call where he worked, and I believe he worked at Standard Oil Company, and find out why — if he was working late, and when they tell him [sic] that he left a couple of hours earlier that then she was to call the hospitals and call the police department, make inquiries of him.” Handy stated that Engleman “had a trash bag or leaf bag or something, and he draped this over him.” Handy did not remember where Engleman had obtained the trash bag. Handy did not remember anything else having been placed over the body. Engleman drove the Camaro with Handy on the passenger side back to the parking lot where Engleman’s car had been parked. Handy then drove Engle-man’s car as he followed Engleman, still driving the Camaro, to “a little motel of some sort” surrounded by a cyclone fence in “a business section” in “East St. Louis someplace,” an area with which the witness was not familiar. Engleman parked the Camaro and got into the passenger’s seat of his own car, giving Handy directions out of the area. Handy said that the plastic bag Engleman had brought with him was smaller than a trash bag and that Engleman told him that he had the gun and the hammer, as well as the victim’s billfold and watch, in the plastic bag.

Handy testified further that in “[m]aybe March or May” of 1976 Engleman had told him “that Barbara was getting married, or had gotten married and that he was going to kill Barbara’s husband for the insurance.” The defendant was, he said, “to get as much insurance as possible” with herself as the beneficiary. Approximately four or five months later, in about September of 1976, Engleman had told Handy that “Barbara’s husband’s parents were wealthy farmers.” Engleman told Handy “he knew this to be true because Barbara had told it to him.” Engleman indicated that, as a result of this information, “they was going to wait and first kill Mr. and Mrs. Gusewelle for the inheritance” and, after “the inheritance got straightened out,” they were “going to kill Ron Gusewelle.” Engle-man asked Handy to participate in the offense and told him “that his wife, Ruth Engleman, was going to assist him with it.” Handy testified that as he and Engleman were driving to the elder Guse-welles’ home on November 3, 1977, Engleman told him “that he was going, since they was active with the Farm Bureau, and he had on a suit and tie, he said that he was going to state that he was from the Farm Bureau, and this would give him easy access to the entrance to their home.” Having arrived at the elder Gusewelles’, Handy said, “[h]e drove into their home, they had the lights on, you know, in the driveway. Engleman got out of the automobile. He grabbed my attache case and walked up to the door, and they let him in.” Engleman had told him that “he was going to tell them to lay down, and he was going to tie them up.” The rope was, however, “still in the package” when Engleman returned from the house:

“Well, he said he walked in and told them he was from the Farm Bureau and to get into the house, and when he got in the house he opened up the attache case, pulled out the gun, told them both to lay face down on the floor that he was going to tie them up, which he said they did. And as soon as they laid down on the floor, he shot them.”

Explaining further, Handy said, “So they laid down expecting to be tied up. So then when they laid down, then he shot them in the back of the head.” Engleman had told him that “he pulled drawers and opened up doors and took the bed apart and opened up the ice box and went through the refrigerator. And to make it look like somebody had pilfered through the home.” Handy described Engle-man as a target shooter familiar with guns, who owned several guns and practiced in a shooting gallery located in the basement of Engleman’s sister’s house. Engleman told Handy that he had destroyed the weapon used to kill the elder Gusewelles by cutting it up and disposing of it. He described the weapon as being “twin” of a High Standard pistol shown to him earlier. Other evidence showed that the High Standard pistol in question would seem to a lay person to be similar in appearance to one of the two weapons identified by ballistic experts as capable of firing the casings found in the elder Gusewelle’s home. Handy testified that Engleman had needed money in order to pay taxes owed for several years to the Internal Revenue Service. After the deaths of the elder Gusewelles, Engle-man had told Handy that “Barbara had told him that she was having — or having trouble with the rebate [sic] because of her brother-in-law, because he is arguing against it or something or other. He was rebutting it, so that slowed down the probate.” Handy described plans discarded by Engleman for the murder of Ronald Gu-sewelle, among them the following:

“[H]e said what he would do, he was going to go in and tie up Barbara like it was a robbery and she was there, and then when Ron come in, he was going to kill Ron like he resisted and throw some furniture around and break some lamps. And then leave Barbara tied up in the bed, and then when the children [the defendant’s children by a prior marriage] or somebody come by, she would be found.”

Engleman had said that the defendant “didn’t like the idea.” Engle-man had said further that the reason for having the defendant pick them up at the parking lot was “[s]o that there would be nothing unusual at her home. Her car would be there, Engleman’s car wouldn’t be there, and it wouldn’t alert or alarm anybody.” Handy testified that when they arrived at the defendant’s residence, she had said that “Ron was punctual, that he would be home right away and that to get ready, so she went into the house, and I believe she changed clothes, and Dr. Engleman and I remained in the garage.” Handy said there was a “considerable amount of blood” and that Engleman “yelled at Barbara and told her to bring the towels, that — ready for the towels. So then she appeared, and she had a bundle of towels. They started laying the towels down, and Glen was dragging the body over to the car.” After the victim’s body had been left in the parking lot of the motel, Engleman told Handy that “he had put some prophylactics in his pocket” in order to “make it look like it was a sex killing or something or other, robbery and a sex thing.” Engleman told him he had destroyed the gun used to kill Ronald Gusewelle. Handy said that he had been aware of the delay in finding Ronald Gusewelle’s body: “Engleman would tell me that he would drive over there each morning just to see if they had found it, you know, until they did find it.” Handy stated that Engle-man “wasn’t to contact Barb. Barb wasn’t to contact him until the thing settled, and she had some money. Engleman was in debt with his taxes, and I believe it was three months or four months after Ron Gusewelle was killed that Engleman said that Barbara had helped him out with his income tax” in order to pay off an Internal Revenue Service lien. Handy testified that he did not know how often after the killing of Ronald Gusewelle Engleman and the defendant “contacted. He did say that she would get ahold of him, that he wasn’t going to call her, and when she did call him that she went to Northland, north St. Louis, and she would use the pay phone to call him at the office [in the St. Louis area].” Likewise, Handy said, if Engleman attempted to call the defendant he would go over to Illinois and use a telephone there. Handy said that “[t]here has been a few times that Barbara Gusewelle has tried to get ahold of Dr. Engleman and was unable to. She would call me and say that she was trying to locate Dr. Engleman.” Handy said that he would give the message to Engleman. He did not recall the dates because “[i]t was insignificant to me at the time.” The witness said that at the time he had resided in Mehlville, Missouri, a couple of blocks from Engleman’s condominium. He testified that on September 26, 1984, by giving directions to sheriff’s deputies Major Robert Hertz and Sergeant Donald Spaul he had retraced with them the route taken by him and Engleman to reach the residences of the elder Guse-welles and Ronald Gusewelle and the defendant.

On extensive and vigorous cross-examination, Handy stated that he had been told by former State’s Attorney Weber that if he did not cooperate he would be charged with “capital murder.” He said that Weber had wanted details directly implicating the people named. Handy maintained that he had received no compensation for his part in the three murders. He testified that he recalled the time of arrival at the elder Gusewelles as just before sunset, although he agreed that, because of the time of year, the sun had, in fact, probably already set when they arrived there. He stated that Engleman had told him the elder Gusewelles “had no company that night [November 3, 1977]. How he knew this, I don’t know.” Handy said that in the interview on July 24, 1984, he had described the defendant’s automobile on the night of March 31, 1979, as a full-sized, white, two-door Oldsmobile. He did not recall that an electric door opener had been used to open the garage door to the right and said that he might have told Detective Spaul that “one member of the party” had opened the garage door manually so that the defendant could drive in the garage. He could not recall how the door to the right had been opened. Other evidence established that the door on the right was, in fact, electrically operated, although the one on the left was manually operated. Handy recalled that the headlights of the Camaro were on, that Engleman was about two feet from Ronald Gusewelle when he shot him, and that the victim pivoted slightly after being shot. Handy said that Engleman was right-handed and had struck the victim with the sledgehammer on the right side of his head. He indicated that Engleman had struck a blow to the victim’s head while he was still on his feet and had struck him repeatedly after he had fallen. After the body had been put into the Camaro, Engleman “folded” the victim’s feet under him.

On redirect examination Handy said that Engleman was standing right in front of him in the dark garage and that when the headlights from the Camaro shone into the garage they were somewhat blinding.

Outside the presence of the jury, Ruth Engleman, the former wife of Glennon Engleman, testified so that the trial court could determine whether certain statements made by Engleman to her were made in furtherance of the conspiracy to murder the Gusewelles. Pursuant to the trial court’s ruling, in the presence of the jury she testified that she and Engleman were married on April 15, 1967, and divorced on August 31, 1978. She had seen the defendant first at a barbecue in approximately 1974. The defendant had come with Bob Handy. She saw the defendant just before Thanksgiving in 1978 at Engleman’s dental office in the morning at a time that was not normal business hours. The witness recalled a conversation with Engleman on a Sunday afternoon in January of 1979 pertaining to Engleman’s having met with the defendant and Bob Handy for the purpose of discussing a plan to kill the defendant’s husband:

“He told me that the plan, one of the plans that they had discussed that day was to have Barbara, while her children were with her ex-husband, to have Barbara tied up in bed, and they were going to make it appear as though she were raped and beat up and that when her husband came home, he was going to find her like this, and he was going to kill — they were going to kill Ron, her husband.”

The witness testified further:

“[Engleman] told [defendant] that in order to make it look realistic and authentic that she would be tied up for several hours, maybe even a day, and that she would defecate and urinate on herself, and to make it look as though she was not involved in this crime.”

Engleman said that “Barbara didn’t like the plan for the reason that she would — didn’t want to get dirty or be involved in personally having this part of the thing happen to her, but that it would be alright if I did this.” The defendant had, she said, suggested that the witness take her place. The witness testified that she and Engleman had had “many guns.” She herself had had under her mattress a “small .38 caliber revolver,” black with a pearl handle, which she had been unable to find after March of 1979. She testified that in September of 1979 Engleman had made a long distance call from her telephone to a number in Wood River, Illinois, that was shown by other testimony to be the number of the Amoco Oil Company.

Nick Miranda testified that he was acquainted with the defendant and had known her in 1959 or 1960, prior to her marriage to Dr. Boyle, when she resided in an apartment at the home of Dr. Engleman’s mother. At the time Dr. Engleman was living with his mother. The witness had seen the defendant 10 or 12 years later, after Engleman had given him her telephone number.

The Director of the State Crime Laboratory testified that the projectile removed from the body of Ronald Gusewelle was a .38 caliber projectile.

The State put on evidence concerning sections of wallboard taken from the north and west walls of the defendant’s garage on August 7, 1984. The section of wallboard taken from the west wall of the garage had a single layer of paint on it, whereas the section of wall taken f