{ "id": 291563, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN RUTHERFORD et al., Defendants-Appellants", "name_abbreviation": "People v. Rutherford", "decision_date": "1995-06-26", "docket_number": "Nos. 1\u201492\u20143729, 1\u201493\u20140676 cons.", "first_page": "116", "last_page": "130", "citations": [ { "type": "official", "cite": "274 Ill. App. 3d 116" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "549 N.E.2d 331", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "133 Ill. 2d 118", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260454 ], "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0118-01" ] }, { "cite": "637 N.E.2d 992", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "159 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781338 ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0272-01" ] }, { "cite": "460 N.E.2d 746", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "99 Ill. 2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163903 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-2d/99/0508-01" ] }, { "cite": "439 N.E.2d 1080", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 846", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3012280 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0846-01" ] }, { "cite": "272 Ill. App. 3d 394", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 251225 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0394-01" ] }, { "cite": "557 N.E.2d 917", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 933", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467979 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0933-01" ] }, { "cite": "606 N.E.2d 514", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "opinion_index": 0 }, { "cite": "238 Ill. App. 3d 626", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5156464 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0626-01" ] }, { "cite": "606 N.E.2d 1201", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "153 Ill. 2d 218", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738071 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-2d/153/0218-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "478 N.E.2d 402", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "106 Ill. 2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138571 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/106/0342-01" ] }, { "cite": "627 N.E.2d 209", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 921", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2977914 ], "weight": 2, "pin_cites": [ { "page": "930" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0921-01" ] }, { "cite": "501 N.E.2d 207", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 1000", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3460701 ], "pin_cites": [ { "page": "1020-21" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/1000-01" ] }, { "cite": "643 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "162 Ill. 2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477550 ], "weight": 2, "pin_cites": [ { "page": "345" }, { "page": "344-46" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0314-01" ] }, { "cite": "166 Ill. 2d 35", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198909 ], "weight": 3, "pin_cites": [ { "page": "44" }, { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0035-01" ] }, { "cite": "617 N.E.2d 360", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "247 Ill. App. 3d 415", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2930902 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/247/0415-01" ] }, { "cite": "130 Ill. App. 3d 254", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3492152 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0254-01" ] }, { "cite": "480 N.E.2d 1373", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 865", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3637221 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0865-01" ] }, { "cite": "417 N.E.2d 1029", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 864", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3132436 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0864-01" ] }, { "cite": "453 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 1041", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3482402 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/1041-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 3, "pin_cites": [ { "page": "300-01" }, { "page": "311-12" }, { "page": "1048-49" } ], "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "488 N.E.2d 995", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "111 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166591 ], "weight": 4, "pin_cites": [ { "page": "66" }, { "page": "67" }, { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0058-01" ] }, { "cite": "429 N.E.2d 470", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "87 Ill. 2d 134", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3030472 ], "weight": 2, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0134-01" ] } ], "analysis": { "cardinality": 1340, "char_count": 32297, "ocr_confidence": 0.736, "pagerank": { "raw": 5.263466812293909e-08, "percentile": 0.330603058325022 }, "sha256": "7841620c8f6dd4ff4976baff6fcdfa3456647bb73b2c69a7a1731dda39c62be0", "simhash": "1:1a9cf0b8eaf7a947", "word_count": 5508 }, "last_updated": "2023-07-14T20:31:30.839378+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN RUTHERFORD et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nAccepting an invitation to stay at the Rutherfords can prove fatal.\nIn late March 1991, 19-year-old Stanley Brown (Stan) and 16-year-old Steven Stabler (Stabler) were living in the Rutherford home at 4516 N. Christiana in Chicago. It was not unusual for 16-year-old Nathan Rutherford (Nathan) to invite friends to stay there at times. Nathan lived in the house with his mother and his father, Clyde Rutherford (Clyde).\nIn early May, Stan\u2019s mother filed a missing persons report on her son. A police investigation began. Police officers interviewed Stan\u2019s family and friends.\nOn June 2, 1991, police officers, with the aid of shovels and a backhoe, found Stan\u2019s corpse, buried in Hidden Hill in Schiller Woods. He had been beaten and then buried alive. His hands were bound in front of him with a nylon rope.\nClyde, Nathan, and Stahler were charged with Stan\u2019s murder and with concealment of his homicidal death.\nClyde was tried in February 1992. That trial ended in a hung jury. He was retried in January 1993, found guilty of both charges by a jury, and sentenced to 27 years\u2019 imprisonment.\nNathan was tried in April 1992, found guilty of both charges by a jury, and sentenced to 42 years.\nStabler pleaded guilty to the charges and was sentenced to 45 years.\nWe have consolidated the appeals of Clyde and Nathan.\nWe affirm their convictions.\nEVIDENCE PRESENTED AT CLYDE\u2019S TRIAL\nThe State presented Stan\u2019s mother, Pat Stille, as a life and death witness. The State also presented Rosalee Augustyn and Donna Du-melle, both sponsors of an Alateen group that Stan attended. These witnesses established that Stan failed to attend a group session scheduled for April 2, 1991, and that the contact phone number he gave at the last session he attended was the Rutherfords\u2019 phone number.\nThe next witness was Steve Williams, owner of the Forest News Agency, which employed Clyde Rutherford. Williams established that Clyde was 1 of 15 employees who provided home delivery of the Sun-Times newspaper. Clyde\u2019s route encompassed the area from Belmont to Irving Park Road and from Harlem Avenue to Okedo and could be completed in l1 \u00a12 to 2 hours.\nPapers were generally picked up around 1 a.m. each day and Clyde typically was the first person waiting in line to pick up papers. Also, Clyde was often accompanied by his son, Nathan, and some of Nathan\u2019s friends, when working the paper route.\nThe next witness was Lori Kellas, a past girl friend of Nathan\u2019s. She had known Nathan for about V-h years before March 1991. She met both Stabler and Stan in February 1991.\nOn the weekend of Lori\u2019s birthday, in March 1991, Clyde drove Nathan and Stan to Wisconsin to pick her up and drive her to Chicago. The next time Clyde drove Nathan to Wisconsin, on the weekend of April 18, 1991, Stan was not with them. Stabler was. When Clyde pulled up to her house, she walked out of her home to greet them. As she stood 10 to 15 feet from the truck, with Clyde\u2019s window open, Nathan presented her with a baseball bat, saying: \"Stan\u2019s there.\u201d He then said that the brownish stains on the bat were Stan\u2019s blood.\nOn the following weekend, Clyde drove Nathan and Stabler to Wisconsin once again to pick up Lori and drive her back to Chicago. Lori stayed in Nathan\u2019s room and noticed a brown-colored glass cognac bottle on top of Nathan\u2019s television set. The bottle contained a brownish liquid and Nathan told Lori that the liquid was Stan\u2019s blood.\nOn Mother\u2019s Day weekend in May 1991, Lori saw Nathan again. When Clyde drove Nathan over to Lori\u2019s house to pick her up, Stabler and a girl named Barbara Campbell were already in the truck. They went to Nathan\u2019s grandmother\u2019s home in Salem, Wisconsin, and picked up Nathan\u2019s mother. As they were driving away from the grandmother\u2019s home, Nathan and Stahler started waving and hollering, \"Bye, Stan.\u201d When Lori asked what they were doing, Nathan told her, \"Stan\u2019s there,\u201d pointing to a swamp near the grandmother\u2019s home.\nIn Chicago, when Lori accompanied Nathan, Stahler, and Clyde on the paper route, she asked Clyde where Stan was. Clyde replied, \"He\u2019s not here now. I really didn\u2019t care for him anyway.\u201d\nOn May 15, 1991, Lori told her friend, Lori Dunbar, about the bat and Nathan\u2019s comments. They decided to call the sheriff s office. The Kenosha County sheriff met with Lori. Lori turned over the bat to the sheriffs office.\nDetective Larry LaPointe of the Kenosha County sheriffs office testified that the bat recovered from Lori Kellas was analyzed at their crime lab. Tests showed that the bat was stained with human blood. Based on Lori\u2019s information, the swamp areas near Nathan\u2019s grandmother\u2019s home were searched. A brown bottle containing a brownish liquid was recovered. The liquid in the bottle was later determined to be approximately three ounces of human blood.\nLaPointe also testified that between May 20 and June 2, 1991, he was in contact with Detectives Mohan and Santopadre of the Chicago police department regarding the disappearance of Stan. On June 2, 1991, he was contacted by the Chicago police and told that Stan\u2019s body had been recovered.\nNext, Dr. Stein, chief medical examiner for Cook County, testified that he was present on June 2, 1991, when a body was recovered from a makeshift grave located at Hidden Hill in the Schiller Woods Forest Preserve. The body was later positively identified through dental records as that of Stanley Brown. On June 3, 1991, an autopsy was performed on Stan\u2019s extremely decomposed body. It revealed that, although there was evidence of lacerations on both sides of Stan\u2019s head, there was no skull fracture. Stan died of asphyxiation. There was dirt and gravel in his mouth, esophagus, trachea, and lungs. He had been buried alive. It was also noted that Stan\u2019s hands had been bound with rope.\nDetective Mohan of the Chicago police department testified that on June 1, 1991, at about 8 p.m., he and his partner went to 4516 N. Christiana, where they arrested Clyde, Nathan, and Stahler. They were transported to Area 5 and interviewed regarding the whereabouts of Stanley Brown. Around 12 p.m. Mohan\u2019s partner, Detective Santopadre, took Stahler to Hidden Hill. An excavation of an area at Hidden Hill was begun. Using a backhoe it took V-h hours to uncover Stan\u2019s body.\nClyde refused to give a signed statement but made oral statements to the police. He first said that he hadn\u2019t seen Stan for about two months. Around 10 p.m. on June 1, 1991, Detective Mohan had a second conversation with Clyde regarding the events leading to Stan\u2019s death. Clyde said that on April 1, 1991, he saw Stan coming down the stairs of his home, assisted by Nathan and Stabler. He knew that Stan had been beaten and could see that he was bleeding. Nathan and Stabler asked him for a ride to Schiller Woods. He agreed to take them and directed them to put Stan in the back of the truck. At Schiller Woods, Stabler and Stan walked off towards the woods. Stabler had a shovel and a car battery. Clyde stated that it was his understanding that Stabler intended to beat Stan some more in the woods. He and Nathan then left to do the paper route.\nStabler met up with them on the paper route sometime later, without Stan. Clyde stated that he asked where his shovel was. Then they drove to where Stabler left the shovel to recover it. Clyde said he asked Stabler about Stan. Stabler told him that Stan got scared and ran off.\nDetective Mark Sanders testified that on June 2, 1991, he executed a search warrant on Clyde\u2019s residence and truck. Clyde had voluntarily consented to the search and accompanied Sanders to the residence for the search.\nIn the course of the search, pictures were taken of Clyde\u2019s truck. They recovered items from the back of the truck, including pieces of rope (similar to that used to bind Stan\u2019s hands), a shovel, a wooden handle, and a gray jacket.\nInside the house the search was confined to the upstairs, where Nathan\u2019s bedroom was located. Several photos were taken. Some photos showed the three beds in Nathan\u2019s room and the television set where Lori Kellas testified that the bottle containing Stan\u2019s blood had been displayed. Sanders also testified that other items were recovered and inventoried. They included: a piece of plywood and a piece of particle board, both of which were found behind a small bureau at the top of the stairs, both containing brownish stains; a guitar, on which the markings \"S.D. 4 \u2014 2\u201491\u201d were written in a brownish substance; a metal baseball bat; a wooden bat with nails driven into it; a pair of blue jeans; and a Metallica T-shirt.\nAssistant State\u2019s Attorney Matthew Mahoney testified that he spoke with Clyde at 11:50 a.m. on June 2, 1991, at Area 5 headquarters. Clyde repeated essentially the same statement that he had given Detective Mohan the night before, with one exception. Clyde said that he knew that Stan had been beaten due to the fact that he had destroyed a misprinted $5 bill. Clyde refused to provide a signed statement or give his statement before a court reporter.\nOn cross-examination Mahoney admitted that he obtained a 22-page court-reported statement from Stabler, but did not reveal the substance of that statement.\nThe last witnesses for the State were John Van Altina and Pamela Fish. Van Altina testified that he had been working at a cemetery for 40 years and was foreman for the last 15 years. At this cemetery they always dig the graves by hand. Van Altina testified that he had gone to Schiller Woods to determine the soil conditions at Hidden Hill and, based upon his observations and experience, he estimated that it would have taken one person at least two hours to dig a grave the same size as the one in which Stan was buried. In addition, it would have taken between 45 minutes and l1/2 hours to refill the hole to cover the grave.\nOn cross-examination, Van Altina agreed that it would take less time to dig a grave of smaller dimensions. He estimated that a grave the size of 5 feet long, V-I2 feet wide and 3 feet deep would take one person about an hour to dig and 30 to 45 minutes to refill.\nPamela Fish, a criminalist in serology for the Chicago police department, testified that her tests revealed that human blood was present on the plywood board, the baseball bat, and in the brown glass bottle. Also, the phrase \"S.D. 4 \u2014 2\u201491\u201d was written on the guitar in blood. She was unable to determine the blood type because it had been absorbed by the porous, wooden surfaces, and the blood in the bottle had degraded due to exposure.\nThe defense recalled, as its only witnesses, Detectives Mohan and Santopadre. Counsel showed Detective Mohan some pictures of the parking lot at Schiller Woods to establish that there are small cement pillars ringing the field to prevent the public from driving out onto the field. Counsel asked Santopadre about his trip to Hidden Hill with Stabler. Santopadre testified that Stabler marked an area on Hidden Hill with his foot. After these witnesses, the defense rested.\nEVIDENCE PRESENTED AT NATHAN\u2019S TRIAL\nShortly after his arrest, Nathan signed a six-page written statement. It set out his role in the events leading up to and following Stan\u2019s burial. The evidence presented at Nathan\u2019s trial was nearly identical to the evidence at Clyde\u2019s trial, except that Nathan\u2019s statement was used. Neither Clyde\u2019s oral statement nor Stahler\u2019s 22-page court-reported statement was offered at Nathan\u2019s trial.\nIn summary, Nathan\u2019s statement was: Late in March 1991, Nathan discovered that a misprinted $5 bill he owned, valued at $600, was missing. Nathan learned that Stan had taken the bill and confronted him about it. Stan admitted taking the bill after Nathan kicked Stan in the nose, breaking it, and punched him several times. Stan agreed to return the bill.\nLater, Stan showed Nathan the bill he had taken and Nathan realized that the bill had been dyed with ink and that its value was ruined. He became very angry. A day or two later, at the Rutherford home, Stan threw a beer bottle at Nathan as Nathan was entering his bedroom. Nathan took the beer bottle and hit Stan on the side of the head with it, causing a deep cut that bled profusely. Nathan continued to beat Stan with his fists, kick him, and throw objects at him.\nStahler was also present and joined in beating Stan. He used the wooden handle from a toilet plunger. Stahler and Nathan beat Stan for 10 minutes or more. When they finished, Stan was \"very out of it.\u201d As Stan sat leaning against a wall of Nathan\u2019s room, Stahler collected blood from the cut on Stan\u2019s head into a bottle. Nathan took a baseball bat and rolled it in Stan\u2019s blood as a souvenir of the incident.\nAfter the beating, Stan was \"kicked\u201d into the shower and told to wash off. Nathan and Stahler discussed getting rid of Stan. Nathan thought Stan was going to die and didn\u2019t want a dead body around the house. They decided that the best alternative was to bury him in the woods. At about 11 p.m., when it was time to leave to deliver papers on Clyde\u2019s paper route, Stan was taken downstairs, assisted by both Nathan and Stahler, and placed in the back of Clyde\u2019s truck.\nClyde allowed Stan to be placed in his truck and agreed to drive them to Schiller Woods Forest Preserve. At the forest preserve Nathan and Stahler helped Stan out of the truck and sat him on the ground. Stan and Stahler walked off towards the woods with Stahler carrying an ax handle and a shovel. Stan was forced to carry a battery. The battery was taken because Stahler intended to pour battery acid on Stan\u2019s body.\nNathan and Clyde drove off to deliver papers. Stahler met up with them along the paper route V-h hours later. Stahler told Nathan that he buried Stan in Hidden Hill. Clyde drove them to an alley where Stahler had hidden the ax handle and shovel so they could retrieve these items.\nNathan also admitted taking the bloodied bat to Wisconsin and giving it to a girl friend. He took the bottle of blood to Wisconsin, where he threw it in a swamp near his grandmother\u2019s house.\nIn addition to Nathan\u2019s statement, the State presented the same witnesses who testified at Clyde\u2019s trial, with the exception of Steve Williams, Clyde\u2019s employer, and John Van Altina, the cemetery foreman. (Nancy Jones, an assistant medical examiner, testified in place of Dr. Stein, who was ill.)\nThe only defense witness was Nathan\u2019s mother. She said she had 10 other children and that her other sons, who had lived in the house before March 1991, had contributed to the graffiti on the walls of Nathan\u2019s bedroom.\nISSUES IN CLYDE RUTHERFORD\u2019S CASE\nClyde raises four issues on appeal: (1) whether the trial court erred when it refused to allow him to introduce the post-arrest confessions of Nathan and Stabler; (2) whether Clyde\u2019s convictions, based on an accountability theory, are supported by the evidence; (3) whether the prosecutor\u2019s comments during closing argument constituted misconduct requiring reversal; and (4) whether the trial court improperly admitted certain items of evidence. We address each issue.\nTHE POST-ARREST CONFESSIONS OF NATHAN AND STABLER\nIn Clyde\u2019s first trial, his lawyer successfully moved to bar admission of his codefendants\u2019 statements. The jury hung. On retrial, Clyde\u2019s lawyer opposed the State\u2019s motion to preclude any reference to those statements. The defense contended at trial, and here, that the statements were admissible hearsay exceptions as statements against penal interest.\nThe trial court granted the State\u2019s motion, mainly because the declarants were not before the court to testify and because the statements were made to police officers.\nGenerally, a third party\u2019s out-of-court statement that he committed a crime is inadmissible hearsay, even though it is a statement against the declarant\u2019s penal interest. People v. Tate (1981), 87 Ill. 2d 134, 143, 429 N.E.2d 470.\nThere is an exception to the general rule of inadmissibility: the statements may be admitted \"where justice requires.\u201d People v. Bowel (1986), 111 Ill. 2d 58, 66, 488 N.E.2d 995.\nThe seminal decision on this issue is Chambers v. Mississippi (1973), 410 U.S. 284, 300-01, 35 L. Ed. 2d 297, 311-12, 93 S. Ct. 1038, 1048-49. In Chambers, the Court held a defendant was deprived of a fair trial because he was prevented from using a third party\u2019s out-of-court statement that exculpated the defendant and inculpated the declarant. The Court listed four factors that supported admissibility: (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) the statement was corroborated by other evidence; (3) the statement was self-incriminating and against the declarant\u2019s interest; and (4) there was adequate opportunity for cross-examination of the declarant.\nAfter Chambers, Illinois courts used a mechanistic approach, holding that all four factors, as listed in Chambers, had to exist before the out-of-court statement could be admitted.\nFor example, some cases held statements made to police officers could not qualify as declarations against penal interest under Chambers. (See People v. Bonilla (1983), 117 Ill. App. 3d 1041, 453 N.E.2d 1322; People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029.) Others held the statements had to be virtually contemporaneous with the crime to be admissible. See People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470; People v. Nally (1985), 134 Ill. App. 3d 865, 480 N.E.2d 1373; People v. Cunningham (1984), 130 Ill. App. 3d 254, 480 N.E.2d 1373.\nDid Chambers really mean each of the four factors had to exist, precisely, before an out-of-court declaration against penal interest could be admitted? Or was the Court simply emphasizing facts that supported a finding of trustworthiness in that case, without establishing any litmus test?\nThe answer in this State came seven years after Chambers, in People v. Bowel (1986), 111 Ill. 2d 58, 488 N.E.2d 995. Rejecting the view that each Chambers factor is a prerequisite to admission, the court said:\n\"The four factors which the court enumerated in Chambers v. Mississippi [citation] are to be regarded simply as indicia of trustworthiness and not as requirements of admissibility. The question to be considered in judging the admissibility of a declaration of this character is whether the declaration was made under circumstances that provide 'considerable assurance\u2019 of its reliability by objective indicia of trustworthiness.\u201d Bowel, 111 Ill. 2d at 67.\nIn Bowel, the court noted that Federal Rule of Evidence 804 (b)(3) codified the admissibility of a statement made against penal interest. It provides:\n\"(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:\ni*: ?${\n(3) Statement against interest. A statement which *** at the time of its making *** so far tended to subject the declarant to civil or criminal liability ***, that a reasonable person in the declarant\u2019s position would not have made the statement unless believing it to be true. A statement tending to expose the declar-ant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.\u201d Fed. R. Evid. 804(b)(3).\nRule 804(b)(3) places a premium on a clear indication of trustworthiness, reflecting a distrust of third party confessions that exculpate an accused. It does not refer to the timing, place, or recipient of the statement. Because it requires the declarant to be unavailable, the rule dispenses with Chambers\u2019 fourth factor \u2014 the declarant\u2019s presence in court and his availability for cross-examination.\nIs Rule 804(b)(3) now the law in Illinois? Maybe. The appellate court thought so in People v. Rice (1993), 247 Ill. App. 3d 415, 617 N.E.2d 360. Applying the rule, the court reversed a conviction because the trial judge would not allow into evidence the testimony of a codefendant given under oath at a motion to suppress hearing.\nThe supreme court agreed to hear the case. But it expressly declined to address the State\u2019s argument that Rule 804(b)(3) is not the law in this State. Instead, the court, in a 4-3 decision, held that the suppression hearing testimony would be inadmissible under either Chambers or Rule 804(b)(3). People v. Rice (1995), 166 Ill. 2d 35.\nIn Rice, the court collapsed Chambers and Rule 804(b)(3), selecting parts of each to reach its decision. The court assumed the codefendant\u2019s statement was against his penal interest. It also assumed, \"for a Rule 804(b)(3) analysis, that codefendant was also unavailable, having asserted his fifth amendment right not to testify.\u201d Rice, 166 Ill. 2d at 44.\nThat left for discussion \"the requirement under Rule 804(b)(3) and Chambers that in order for the statement to be admissible sufficient circumstances exist to demonstrate the trustworthiness of the testimony given by codefendant at the hearing on his motion to suppress.\u201d Rice, 166 Ill. 2d at 44.\nThe court then went on to find the testimony was not reliable enough to pass the combined Chambers-Rule 804(b)(3) test. Among the court\u2019s reasons: the testimony came 22 months after the seizure at issue and the declarant had a motive to lie.\nWe now examine the facts in this case to determine whether the statements of Nathan and Stabler should have been admitted at Clyde\u2019s trial.\nWe have no difficulty saying their statements were against their penal interest. Nathan and, in more grisly detail, Stabler chronicled their roles in Stan\u2019s death. Their statements are confessions in every sense of the word.\nThere are ample indicia of reliability. Or, as Rule 804(b)(3) requires, \"corroborating circumstances clearly indicate the trustworthiness of the statement.\u201d Other witnesses spoke of the blood in the bottle and the bloody baseball bat, as Nathan and Stabler did. Stabler led the police to the burial ground. Both gave almost identical versions of the beatings, supported by the medical evidence. Neither made an attempt to exculpate Clyde.\nThe fact that the statements were made some time after the murder is not fatal to admission, since it is the \"qualitative content and circumstances\u201d of the statements that matter. See People v. Cruz (1994), 162 Ill. 2d 314, 345, 643 N.E.2d 636.\nMaking the statements to a police officer, rather than the close acquaintance in Chambers, enhances, rather than diminishes the reliability of the statements. Cruz, 162 Ill. 2d at 344-46; People v. Kokoraleis (1986), 149 Ill. App. 3d 1000, 1020-21, 501 N.E.2d 207.\nThe factor that takes the statements in this case out of Rule 804(b)(3) is the threshold requirement: the declarant must be unavailable. Here, there was no showing of unavailability.\nThe defense made no attempt to bring Nathan or Stabler to the witness stand. The trial judge said he would allow the defense to call them; in fact, he invited the defense to do so.\nHad Stabler or Nathan refused to testify, either by asserting a constitutional privilege or simply persisting in refusal in the face of a court order, he would have been \"unavailable\u201d within the meaning of Rule 804(b)(3). See Fed. Rules of Evid. 804(a)(1), (a)(2).\nWhether the statements would be admissible under a separate Chambers analysis, as portrayed in People v. Rice, is a question we need not decide. Our reason differs from that of the trial court. We hold it did not abuse its discretion because the statements did nothing to exculpate Clyde. In fact, they contained strong evidence against him.\nClyde, in his statements to the police, admitted that Stan, beaten and bloody, was placed in the back of Clyde\u2019s truck by Nathan and Stabler, and that he drove them to a remote woods in the dark of night, knowing at the least that Stan was going to be beaten even more. Clyde also knew Stabler had a shovel and a car battery. Stan did not come back with Stabler and was never seen again, alive.\nThe codefendants substantiate Clyde\u2019s involvement. For example, page 12 of Stahler\u2019s statement: .\n\"Q. Did you encounter anyone on the way down the stairs?\nA. Nathan\u2019s Dad.\nQ. Did Nathan\u2019s father say anything?\nA. Asked what happened.\nQ. What did you say?\nA. We told him that he come back and he started something with us, and we beat him.\nQ. By he, you mean Stan?\nA. Yes.\nQ. What did Nathan\u2019s father say when you said that?\nA. He just agreed with it.\u201d\nThis case is much like People v. Rodriguez (1993), 254 Ill. App. 3d 921, 627 N.E.2d 209. After concluding the out-of-court statement did not satisfy the Chambers requirements, the court said:\n\"We might take a different view of the matter if the excluded statement exonerated defendant. However, in the present case, Vargas\u2019 statement does not exonerate but rather incriminates defendant for the exact offense of which he was convicted, i.e., first degree murder by accountability.\u201d Rodriquez, 254 Ill. App. 3d at 930.\nThat is the case here. We do not find the \"clear showing of abuse of discretion\u201d that is required for reversal on this evidentiary issue. See Bowel, 111 Ill. 2d at 68.\nTHE WEIGHT OF THE EVIDENCE\nClyde\u2019s conviction was based on an accountability theory. His oral statements to the police and to an assistant State\u2019s Attorney were corroborated by the physical evidence and the testimony of Lori Kellas.\nThe reasonable inferences to be drawn from the evidence are the responsibility of the trier of fact. (People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402.) A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant\u2019s guilt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.\nClyde drove a beaten and bloody Stan to a remote area of woods, late at night. He stood by while Stabler, carrying a shovel, took Stan farther into the woods. He knew Stan would be beaten some more. The shovel used to bury Stan came from Clyde\u2019s truck. Stan\u2019s hands were bound with rope similar to the rope in Clyde\u2019s truck. He knew Stan was being punished for his destruction of a misprinted $5 bill.\nThere is nothing improbable or unsatisfactory about the evidence. It supports the conclusion that Clyde shared a common purpose with Nathan and Stabler. He voluntarily attached himself to a group bent on illegal acts. He did not have to do the actual killing or the actual concealment of the body to be guilty of murder and concealment of a homicidal death. He knew serious harm would come to Stan and he helped cause that harm. He supplied the burial shovel. That is enough. See People v. Stanciel (1992), 153 Ill. 2d 218, 606 N.E.2d 1201; People v. Moreno (1992), 238 Ill. App. 3d 626, 606 N.E.2d 514; People v. Taylor (1990), 199 Ill. App. 3d 933, 557 N.E.2d 917.\nTHE PROSECUTOR\u2019S CLOSING ARGUMENT\nClyde contends the State confused the jury by misstating the law of accountability in final argument. The prosecutor argued:\n\"Even if you only believe that his involvement is what is contained in his statement, that another beating was going to occur on that same beat up victim with his shovel in the woods that he drove them to, you must find him guilty of first degree murder because accountability says you aided in an offense. It doesn\u2019t matter that he only believed it to be a beating, according to his word.\nThe law holds you responsible for the consequences of your act. If you supply a gun for a shooting, you\u2019re guilty of the shooting. If you supply the knife for a stabbing, you\u2019re guilty of the stabbing. If you supply the shovel, you\u2019re guilty of the burial of that boy. He is guilty of first degree murder. But for Clyde Rutherford\u2019s actions, Stanley Brown might be here.\u201d\nWhen the defendant objected to this argument, the trial court told the jury it would be instructed on the law after the arguments. It was, correctly.\nWhen a prosecutor misstates the law of accountability in closing argument, the error is not grounds for reversal where, as here, the jury is properly instructed. People v. Allen (1995), 272 Ill. App. 3d 394; People v. Underwood (1982), 108 Ill. App. 3d 846, 439 N.E.2d 1080.\nThere was no reversible error here. The prosecutor\u2019s argument, although somewhat extravagant on the \"if you supply\u201d points, was basically consistent with case law. See People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746; People v. Taylor (1990), 199 Ill. App. 3d 933, 557 N.E.2d 917.\nADMISSION OF ITEMS OF EVIDENCE\nClyde contends the trial court committed reversible error when it allowed into evidence the bottle of blood recovered from the swamp, the bloodstained guitar from Nathan\u2019s room, and the ax handle and jacket found in Clyde\u2019s truck.\nWe find that each item of evidence had probative value in light of the State\u2019s accountability theory. When the probative value of evidence is not substantially outweighed by unfair prejudice, as is the case here, there is no abuse of discretion in admitting the evidence. See People v. Hobley (1994), 159 Ill. 2d 272, 637 N.E.2d 992.\nFor the reasons stated, Clyde\u2019s conviction is affirmed.\nISSUES IN NATHAN RUTHERFORD\u2019S CASE\nNathan raises two issues: (1) whether there was sufficient evidence to find Nathan guilty of the crimes charged; and (2) whether the trial court erroneously refused to instruct the jury on second degree murder.\nTHE WEIGHT OF THE EVIDENCE\nNathan contends he cannot be convicted of murder or concealment of a homicidal death because Stan was alive when he left Schiller Woods with his father.\nWe do not agree.\nAfter taking an active role in Stan\u2019s beating, Nathan talked to Stabler about the best way to get rid of Stan. The decision to bury Stan in the woods was jointly made. He knew the reason why Stan was forced to carry a car battery to Hidden Hill \u2014 \"to have acid to pour on Stanley\u2019s body.\u201d After the burial, Nathan and Stabler met. They picked up the shovel and an ax handle. Stabler told Nathan what he had done with Stan. Then they went home and went to sleep.\nNathan and Stabler were acting in concert. They shared the intent required to commit both crimes. It does not matter that Nathan did not do the actual killing. He knew Stabler was going to kill Stan, then bury the body. That was part of the plan. The jury had more than sufficient evidence to find that Nathan was accountable for Stahler\u2019s actions. See People v. Terry (1984), 99 Ill. 2d 508, 460 N.E.2d 746; People v. Moreno (1992), 238 Ill. App. 3d 626, 606 N.E.2d 514.\nREFUSAL TO INSTRUCT ON SECOND DEGREE MURDER\nNathan contends he presented enough evidence of mutual quarrel or combat to require the giving of a second degree murder instruction. The contention is based on a portion of Nathan\u2019s confession.\nNathan said that when he walked into his bedroom Stan tried to hit him with a beer bottle. The confession goes on to say that Nathan then grabbed the bottle and smashed it into Stan\u2019s head, causing heavy bleeding. Nathan then began beating Stan with his feet and hands. Stabler helped, using the handle of a toilet plunger. This went on for 10 minutes. Stan was \"very out of it.\u201d After collecting Stan\u2019s blood in a bottle, Nathan kicked him into the shower. That is when Nathan and Stabler discussed the best way to get rid of Stan\u2019s body.\nMutual combat is a fight or struggle which both parties enter willingly or where two persons, upon a sudden quarrel and in hot blood, mutually fight upon equal terms and where death results from the combat. People v. Austin (1989), 133 Ill. 2d 118, 125, 549 N.E.2d 331.\nThis was not mutual combat. This was managed slaughter. There was no instructional error.\nCONCLUSION\nFor the reasons stated, the convictions of Clyde Rutherford and Nathan Rutherford are affirmed.\nJudgment affirmed.\nCAMPBELL, P.J., and BRADEN, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Antonia S. Pritchard and Shari L. Friedman, both of Keck, Mahin & Cate, of Chicago, for appellant Nathan Rutherford.", "Joan Marsh, of Kirkland & Ellis, of Chicago, for appellant Clyde Rutherford.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Peter D. Fischer, Ross M. Eagle, and Michael Golden, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NATHAN RUTHERFORD et al., Defendants-Appellants.\nFirst District (1st Division)\nNos. 1\u201492\u20143729, 1\u201493\u20140676 cons.\nOpinion filed June 26, 1995.\n\u2014 Rehearing denied August 18, 1995.\nAntonia S. Pritchard and Shari L. Friedman, both of Keck, Mahin & Cate, of Chicago, for appellant Nathan Rutherford.\nJoan Marsh, of Kirkland & Ellis, of Chicago, for appellant Clyde Rutherford.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Peter D. Fischer, Ross M. Eagle, and Michael Golden, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0116-01", "first_page_order": 134, "last_page_order": 148 }