-
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the
filing of the opinion to request a rehearing. Also, opinions are
subject to modification, correction or withdrawal at anytime prior
to issuance of the mandate by the Clerk of the Court. Therefore,
because the following slip opinion is being made available prior to
the Court's final action in this matter, it cannot be considered
the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets following final
action by the Court.
Docket No. 76490--Agenda 1--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LEONARD KIDD,
Appellant.
Opinion filed December 19, 1996.
JUSTICE MILLER delivered the opinion of the court:
Following a jury trial in the circuit court of Cook
County, the defendant, Leonard Kidd, was convicted of four counts
of murder, one count of armed robbery, one count of aggravated
arson, and four counts of concealment of a homicidal death. At a
separate sentencing hearing, the same jury found the defendant
eligible for the death penalty and further determined that there
were no mitigating circumstances sufficient to preclude imposition
of that sentence. The defendant was accordingly sentenced to death
for the murder convictions, and he received sentences of
imprisonment for the remaining convictions. The defendant's
execution has been stayed pending direct review by this court. Ill.
Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). For the
reasons that follow, we affirm the judgment of the circuit court,
as modified.
The defendant previously pleaded guilty to these charges
and was sentenced to death at that time. In an earlier appeal, this
court found the defendant's plea to be defective because of
improper admonitions given to the defendant at the plea hearing,
and accordingly vacated his convictions and death sentence. People
v. Kidd, 129 Ill. 2d 432 (1989). The case then proceeded to trial
on remand.
The present offenses were discovered on January 12, 1983,
when investigators responding to the report of a fire found the
bodies of three adults, Renee Coleman, Michelle Jointer, and
Ricardo Pedro, and one child, Renee's son Anthony, in an apartment
at 1553 West 91st Street in Chicago, where Coleman lived with her
son and Jointer. The victims were bound and gagged, and they had
been stabbed repeatedly. Two separate fires had been set inside the
apartment. Following an investigation, the defendant and his half-
brother, Leroy Orange, were taken into custody and charged with
these offenses. Their trials were severed at an early stage in the
proceedings.
In the proceedings below, the State presented extensive
evidence of the defendant's involvement in these crimes. Because
the defendant does not challenge the sufficiency of the State's
proof of his guilt, only a brief recitation of the trial evidence
is necessary here; additional evidence will be summarized as it
becomes relevant to the discussion of specific issues. The
defendant made a series of statements to police after he was
arrested, and these were introduced into evidence at trial. The
defendant initially told officers that he and his brother, Leroy
Orange, were at Coleman's apartment on the night of the murders.
The defendant said, however, that he had left there around 4:30 in
the morning, when Orange began arguing with Ricardo Pedro. The
defendant explained that he decided to leave when the confrontation
turned violent. The defendant said that before he could do so,
however, "two dudes" entered the apartment; both of them had
knives. The defendant remained outside the building, and he said
that he later saw the two men leave; one was wearing a jacket
covered with blood. At that time, the defendant gave inconsistent
accounts of the identities of the two men he had seen; at one
point, the defendant said that one was named "Slick Rick." After
the defendant made that statement, police brought Leroy Orange into
the room where the defendant was being interrogated. Orange told
the defendant that he had already admitted committing the murders
and, further, had told authorities that there was no "Slick Rick."
The defendant gave police a second statement later that
evening. In the second statement, the defendant said that he was
the Sportsman's Lounge at 79th and Halsted Streets during the
evening of January 11, 1983. Around 10:30 Orange and Renee Coleman
arrived, and they later took the defendant to the defendant's
residence, where the defendant gave them a combination TV/radio
"box." The defendant then returned alone to the Sportsman's Lounge.
He went back home some time later, where he received a telephone
call from Orange around 12:30 a.m. Orange said that he was having
"a problem with a stud," and the defendant then went to Coleman's
apartment. The defendant said that Orange and Pedro later began
fighting, and Orange stabbed Pedro. The defendant attempted to help
Pedro in one of the bedrooms in the apartment. Sometime later,
according to the defendant, Orange stabbed Pedro again. Orange also
forced Coleman to tie up her son, and Orange bound and gagged
Coleman and Jointer and stabbed the victims.
The defendant repeated many of the preceding details in
a formal statement he gave several hours later in the presence of
a court reporter. While in custody, the defendant also led police
to various garbage cans near Coleman's apartment where the knives
used in the attack had been discarded. The defendant also showed
the officers where other evidence, including drug paraphernalia,
clothing, and burnt debris, had been left.
At trial, the State also presented testimony given by the
defendant at Leroy Orange's trial on these charges, and at the
defendant's own sentencing hearing, conducted following the
defendant's earlier guilty plea. At Orange's trial, the defendant
claimed that he alone committed the murders and maintained that he
stabbed the victims when Orange was not present. The defendant, in
the testimony he gave at his sentencing hearing, again said that he
alone committed the crimes. On that occasion, however, the
defendant also mentioned that he saw red things coming at him when
he stabbed the victims.
Defense counsel introduced into evidence Orange's own
inculpatory statement to authorities. In that statement, Orange
claimed sole responsibility for the crimes. The defendant also
presented the testimony of Dr. Linda Wetzel, a clinical
psychologist, who had interviewed the defendant and given him
various tests. Dr. Wetzel concluded, among other things, that the
defendant was mentally retarded, had brain damage, and possessed a
compliant nature.
At the close of evidence, the jury found the defendant
guilty of the charges of murder, aggravated arson, armed robbery,
and concealment of homicidal death. The matter then proceeded to a
capital sentencing hearing. At the first stage of the sentencing
hearing, the jury found the existence of three separate aggravating
circumstances rendering the defendant eligible for the death
penalty: the commission of multiple murders, murder in the course
of a felony--armed robbery in this case--and murder of a child
under 12 years of age in a brutal or heinous manner. Ill. Rev.
Stat. 1983, ch. 38, pars. 9--1(b)(3), (b)(6), (b)(7).
At the second stage of the sentencing hearing, the State
presented testimony of the defendant's lengthy record of
misconduct, occurring inside and outside prison. The defendant had
incurred a substantial number of disciplinary tickets for his
infractions while incarcerated. On a number of occasions the
defendant threatened prison personnel and other inmates. In one
incident, the defendant struck a handcuffed inmate on the head
three times with an unopened can of food that was concealed inside
a sock. In mitigation, the defendant presented the testimony of Dr.
George Savarese, a licensed social worker, who had complied a
comprehensive social history of the defendant. In preparing that
report, Dr. Savarese interviewed the defendant's family members and
friends, and also reviewed a number of records and reports
concerning the defendant. Dr. Savarese described the defendant's
troubled childhood and history of drug use, as well as other
aspects of the defendant's life. Following the consideration of
evidence in aggravation and mitigation, the jury determined that
there was no mitigating circumstance sufficient to preclude a
sentence of death. Accordingly, the defendant was sentenced to
death for the murder convictions.
The judge sentenced the defendant to consecutive terms of
30 years' imprisonment for the convictions for aggravated arson and
armed robbery. The judge imposed terms of five years' imprisonment
for each of the four convictions for concealment of a homicidal
death. Those sentences were to run concurrently with each other but
consecutively to the prison terms for aggravated arson and armed
robbery.
I. Trial Issues
A
The defendant first argues that he was entitled to a
fitness hearing under the rule announced in People v. Brandon, 162
Ill. 2d 450 (1994), because he was taking "psychotropic drugs or
other medications under medical direction" (725 ILCS 5/104--21(a)
(West 1992)) at the time of the trial and sentencing hearing in
this case. Specifically, the defendant asserts that he was then
taking Dilantin, for treatment of epilepsy, and he further states
that he had previously taken two others drugs, Tegretol, also for
epilepsy, and Elavil, an antidepressant.
We note that the record discloses only that the defendant
was receiving Dilantin at the time relevant here; evidence of his
treatment may be found in the testimony of Dr. Wetzel, who related
that the defendant was receiving the drug when she interviewed him
shortly before trial. It appears that the defendant had epilepsy
and that he took Dilantin as treatment for that condition. The
State argues, however, that the special protection afforded by
section 104--21(a) of the Code of Criminal Procedure of 1963 must
be limited to psychotropic drugs, and that Dilantin is not a
psychotropic drug. Our recent opinion in People v. Britz, No. 76618
(October 18, 1996), resolves a number of the issues here. In Britz,
this court construed the reference in section 104--21(a) to
"psychotropic drugs or other medications" as being limited to
psychotropic drugs; accordingly, treatment with a nonpsychotropic
medication is not sufficient to trigger the statute. Slip op. at
24-25. The question remains whether Dilantin is properly classified
as a psychotropic drug, and therefore whether the defendant's use
of that medication during trial would have entitled the defendant
to a fitness hearing under the provisions of section 104--21(a).
Britz further clarified what drugs are psychotropic by
adopting the definition found in the Mental Health and
Developmental Disabilities Code (405 ILCS 5/1--100 through 6--107
(West 1994)). Slip op. at 25-26. Section 1--121.1 of the Code
defines the term "psychotropic medication" as a "medication whose
use for antipsychotic, antidepressant, antimanic, antianxiety,
behavioral modification or behavioral management purposes is listed
in AMA Drug Evaluations, latest edition, or Physician's Desk
Reference, latest edition, or which are administered for any of
these purposes." 405 ILCS 5/1--121.1 (West Supp. 1995). Applying
this definition, we conclude that Dilantin is not a psychotropic
drug for purposes of the fitness provision of section 104--21(a).
Dilantin is prescribed for the treatment of epilepsy, not for any
of the purposes specified in the definition found in section 1--
121.1 of the Mental Health and Developmental Disabilities Code.
Moreover, neither of the references cited in the preceding
definition indicate that Dilantin is used for psychotropic
purposes. According to the Physician's Desk Reference, Dilantin
(phenytoin) is an anticonvulsant drug used to treat epilepsy and to
prevent and treat seizures occurring during or following
neurosurgery. Physician's Desk Reference 1906--13 (50th ed. 1996);
see also AMA Drug Evaluations 371 (AMA 1994) (phenytoin is a drug
used to control epileptic seizures).
Because the defendant was not entitled to a fitness
hearing under section 104--21(a), defense counsel could not have
been ineffective for failing to seek one pursuant to that
provision. Accordingly, we do not address the defendant's
additional argument that he received ineffective assistance of
counsel when his trial attorneys failed to invoke section 104--
21(a).
In the alternative, the defendant asks that we now remand
the cause to the circuit court so that additional information may
be presented about other medications the defendant might have been
receiving at the time of trial. The defendant has found references
in various portions of the record in this case to his prior
treatment with two other drugs: Tegretol, another epilepsy
medication, and Elavil, an antidepressant. The defendant notes that
a similar procedure was followed in People v. Kinkead, 168 Ill. 2d
394 (1995).
We believe that Kinkead is readily distinguishable from
the present case. In Kinkead, the defendant's presentence report
related the defendant's statement that he had been taking
Thorazine, a psychotropic drug, while in jail awaiting trial on the
charges in that case; the report also noted other drugs the
defendant had previously received for treatment of depression. In
addition, the report referred to suicide attempts by the defendant,
and to his treatment at Menard Psychiatric Center. Kinkead, 168
Ill. 2d at 403. The details of the defendant's treatment with
Thorazine could not be ascertained from the record, however, and
therefore the court believed that a remand was necessary to clarify
the schedule of treatment. The court noted further that there was
no indication in the record regarding the possible effects of that
drug.
We do not agree with the defendant that Kinkead is
controlling here. In contrast to Kinkead, in the present case,
there is no indication in the record that the defendant was
actually receiving a psychotropic drug at any point near the time
of trial or sentencing in this case. The references to his earlier
treatment all predate, by substantial periods, the beginning of the
defendant's trial, in May 1993. Moreover, the defendant had been
examined by two psychiatrists in November and December 1991 and had
been found fit at that time. To adopt the defendant's argument in
this case and order a remand for development of a further
evidentiary record would mean that a remand must be available in
every case in which the record contains some reference to the
defendant's long-ago treatment with a psychotropic drug. We decline
to extend Kinkead in that manner.
B
The defendant next argues that the trial judge erred in
failing to grant a defense motion to quash the defendant's arrest
and to suppress evidence stemming from the arrest. The police did
not have an arrest warrant, and the defendant contends that they
lacked probable cause to make the arrest.
The offenses charged here were discovered by authorities
sometime after 6 a.m. on January 12, 1983. In the apartment police
found an address book containing Leroy Orange's name and providing
two addresses for him, 702 E. 75th Street, and 7915 S. Emerald;
Leroy's mother and half-brother, the defendant in this case, also
resided at the latter address. Investigating officers learned from
Enitowec Durr that Leroy Orange had been with Renee and others in
the apartment around 9 o'clock the preceding night; Durr had spoken
to Renee on the telephone around that time and had learned in the
course of the conversation that Orange was at the apartment. Durr
told police that Leroy was Renee's former boyfriend and that the
two had not been getting along well. Three persons who had been at
Renee's apartment the preceding night reported that Leroy was there
when they left, around midnight.
Detectives McNally and McCabe went to the 75th Street
address between 2 and 3 p.m. on January 12, where they talked to
Mildred Orange, Leroy's wife. Mrs. Orange told the officers that
Leroy had left the residence around 7 o'clock the preceding night
and had not returned that night. When Mrs. Orange learned that the
police were trying to locate Leroy, she called the South Emerald
Street address and discovered that he was there. McNally and McCabe
remained with Mrs. Orange, while other officers went to South
Emerald Street to arrest Leroy. Mrs. Orange also told the officers
that when she had arrived home from work that afternoon, she had
discovered a pair of shoes, pants, a shirt, and a jacket that had
not been there in the morning. Mrs. Orange was able to identify the
pants as belonging to the defendant.
Around 3:45 that afternoon, Mrs. Orange received a
telephone call from the defendant. Officers McNally and McCabe were
still with her. In the telephone call, the contents of which Mrs.
Orange later related to the officers, the defendant said that Leroy
had been arrested, and the defendant asked Mrs. Orange to call the
police and find out what the charges were. The defendant also said
that he needed to talk to Mrs. Orange, and he made arrangements to
meet her at a McDonald's restaurant. The defendant told Mrs. Orange
" ``that he and Leroy were involved in something that could put him
in jail for the rest of their lives.' " Later that afternoon, the
defendant was arrested at the McDonald's restaurant where Mrs.
Orange had gone to meet him.
To effect a warrantless arrest, a police officer must
have probable cause to believe that an offense was committed and
that the person to be arrested committed it. Beck v. Ohio, 379 U.S.
89, 91, 13 L. Ed. 2d 142, 145, 85 S. Ct. 223, 225 (1964); People v.
Montgomery, 112 Ill. 2d 517, 525 (1986); see also Ill. Rev. Stat.
1983, ch. 38, par. 107--2(1)(c). Under the probable cause standard,
"[e]vidence that will sustain a conviction is not required, but
more than mere suspicion is necessary. [Citation.]" In re D.G., 144
Ill. 2d 404, 412-13 (1991) (Miller, C.J., dissenting). The burden
is on the defendant to show the illegality of the challenged search
or seizure. Ill. Rev. Stat. 1983, ch. 38, par. 114--12(b). A trial
court's ruling on a motion to suppress will not be reversed on
appeal unless it is manifestly erroneous. People v. Williams, 147
Ill. 2d 173, 209 (1991). There was no doubt in the present case
that crimes had been committed; the only relevant question before
the police officers was whether the defendant was one of the
persons involved in their commission.
In making a warrantless arrest of the defendant, the
police relied on information provided to them by Mildred Orange and
on other information they had acquired in the course of their
investigation of these offenses. We conclude that the officers had
probable cause to arrest the defendant for these offenses.
Following their conversations with Mrs. Orange and their
investigation of the crime scene and of evidence found there, the
police knew that the defendant had implicated himself in an
unspecified offense with his brother, Leroy Orange. The police also
knew that Leroy Orange had been present at the crime scene the
preceding night, several hours before the murders. Also, the police
knew from Mrs. Orange that a change of clothes had been left in her
apartment that day, and that at least one of those garments
belonged to the defendant.
From the circumstances of the offenses, the police also
would have realized that it was likely that more than one offender
was involved. The number of victims and the condition in which they
were found strongly suggested that the crimes in this case were the
work of multiple offenders; that three adults and one child had
been tied up and repeatedly stabbed suggested the actions of more
than one person. Thus, when the defendant implicated himself to
Mrs. Orange in an offense in which he said Leroy was also involved,
the police would have had probable cause to believe that the
defendant was involved in the crimes in this case.
The defendant argues, however, that Mrs. Orange must be
considered an informant, and the defendant maintains that she was
of untested and unestablished reliability. Mrs. Orange does not fit
easily into either of the two major categories by which informants
have traditionally been classified. Although Mrs. Orange was not a
witness or victim of the crime, she was not a paid informant,
either. Still, the importance of those classifications are less
significant than they once were. "[I]t matters not by what name the
informant is labelled; we look rather to the informant's
reliability as only one of the factors to be considered in the
totality of the circumstances approach. [Citations.]" People v.
Adams, 131 Ill. 2d 387, 397 (1989). As this court has explained:
"The rationale of protecting against
unreasonable search and seizures by demanding
reliable information from informants is still
relevant under the totality of the circumstances
test adopted by this court in People v. Tisler
(1984), 103 Ill. 2d 226. Thus, the basis of the
informant's knowledge is indeed relevant (i.e.,
whether it is based on being a victim or witness or
whether he is a reliable paid informant); however,
the rigidity embodied in the presumptions
concerning the classifications is no longer
applicable." Adams, 131 Ill. 2d at 398.
"Thus, based on an evaluation of all of the information available,
including the source of the information, the question is one of
whether there is probable cause to believe that the individual in
question is involved in criminality." Adams, 131 Ill. 2d at 398.
We believe that the circumstances here satisfy the
standards relating to arrests based on informants' tips. The
totality of the circumstances known to the arresting officers fully
supported their reliance on the information provided by Mrs.
Orange. Immediately after the conversation with the defendant, Mrs.
Orange told the officers who were present in her apartment what the
defendant had just said; she had no time to fabricate. In People v.
Wright, 111 Ill. 2d 128, 146 (1985), this court noted:
"[D]ecisions analyzing the probable cause standard
reveal that it is a ``practical, nontechnical
conception.' [Citation.] ``In dealing with probable
cause, *** we deal with probabilities. These are
not technical; they are factual and practical
considerations of everyday life on which reasonable
and prudent men, not legal technicians act.'
[Citations.]"
Given the circumstances of the police officers' visit with Mrs.
Orange, and the information she provided to them, the arresting
officers were justified in crediting her report of her telephone
conversation with the defendant. The defendant's contention that
Mrs. Orange's conduct should be viewed as an attempt to deflect
attention away from her husband is without merit, for she helped
the police locate Leroy, and she told the officers about the
defendant's statement implicating Leroy.
The defendant notes that the testimony at the suppression
hearing showed that he told Mrs. Orange that he and Leroy had done
something that could put "him" in jail. Emphasizing the singular
"him," the defendant argues that the statement must be construed as
implicating only Leroy. We do not agree. First, the remainder of
the statement contains a number of plural elements: the comment
that "he and Leroy were involved" in something, and the reference
to "their lives." In addition, Mrs. Orange's testimony at trial
below, and the defendant's testimony at Leroy Orange's trial, also
introduced into evidence in this case, related a slightly different
version of the statement, in which the defendant quite clearly
implicated himself in Leroy's offenses. Thus, at the defendant's
trial, Mrs. Orange testified that the defendant told her,
" ``Mildred, I've got something to tell you that could put me and
Poky [i.e., Leroy] away for the rest of our lives." In testimony at
his brother's trial, also introduced into evidence here, the
defendant recounted, "I said we done something bad that could put
us in jail for the rest of our life [sic]." We may consider these
additional pieces of testimony even though they were not introduced
at the suppression hearing; in reviewing a pretrial suppression
ruling, a court may rely on evidence introduced at the ensuing
trial. People v. Sims, 167 Ill. 2d 483, 500 (1995); People v.
Caballero, 102 Ill. 2d 23, 33-36 (1984); People v. La Bostrie, 14
Ill. 2d 617, 620-21 (1958). It thus seems clear that the defendant
implicated both himself and Leroy in the unspecified offenses.
In conclusion, we believe that the trial judge's decision
to deny the defendant's motion to quash the arrest was not against
the manifest weight of the evidence. The testimony showed that the
police had probable cause to believe that the defendant was
involved in the present offenses. The defendant's inculpatory
statement to Mrs. Orange, the circumstances of the offenses, and
Leroy's presence at Renee's apartment hours before the crimes
provided the police with probable cause to arrest the defendant. We
note that our conclusion that the officers had probable cause to
arrest the defendant is not altered even if we use a de novo
standard of review for this mixed question of law and fact. See
Ornelas v. United States, 517 U.S. ___, 134 L. Ed. 2d 911, 116 S.
Ct. 1657 (1996) (applying de novo standard of review to issues
involving reasonable suspicion to stop vehicle and probable cause
to conduct search). We believe that probable cause for the
defendant's arrest was established by the circumstances in this
case, summarized above, including the defendant's statement to Mrs.
Orange, Leroy's presence at the apartment the preceding night, and
the likely involvement of more than one offender.
C
The defendant also argues that the trial judge erred in
denying his motion to suppress his statements. The defendant
contends that the statements were the products of physical coercion
inflicted by the police officers who interrogated him. The
defendant asserts that the trial judge erred in refusing to
suppress his statements because the State failed to demonstrate, by
clear and convincing evidence, that his injuries were not the
result of police misconduct. See People v. Wilson, 116 Ill. 2d 29
(1987); People v. La Frana, 4 Ill. 2d 261 (1954).
Unlike the cases cited by the defendant, there was no
showing here that the defendant sustained an injury while in police
custody. At the suppression hearing, the police officers who
interrogated the defendant denied the defendant's allegations of
mistreatment. Dennis Dernbach, the assistant State's Attorney who
had taken the defendant's formal statement, and who is now a judge,
testified that the defendant had no complaints about his treatment
while in custody. Dernbach had noticed a mark on the defendant's
forehead, and the defendant explained that he had incurred it a
week or two earlier, when he was the victim of a robbery. This
injury is depicted in a photograph taken at the conclusion of the
defendant's formal statement, as well as in a photograph taken at
the Cook County jail the next day. The defendant did not testify at
the suppression hearing.
The State must show by a preponderance of the evidence
that the defendant made the statement voluntarily. People v. R.D.,
155 Ill. 2d 122, 134 (1993); People v. King, 109 Ill. 2d 514, 525
(1986); Ill. Rev. Stat. 1987, ch. 38, par. 114--11(d); see Lego v.
Twomey, 404 U.S. 477, 489, 30 L. Ed. 2d 618, 627, 92 S. Ct. 619,
627 (1972). Voluntariness will be determined by considering the
totality of the circumstances. People v. Smith, 152 Ill. 2d 229,
253 (1992); People v. Melock, 149 Ill. 2d 423, 447 (1992); People
v. Clark, 114 Ill. 2d 450, 457 (1986). A reviewing court will
reverse the trial court's disposition of a motion to suppress a
statement only if the ruling is against the manifest weight of the
evidence. People v. Jones, 156 Ill. 2d 225, 242-43 (1993); People
v. Evans, 125 Ill. 2d 50, 77 (1988); People v. Kincaid, 87 Ill. 2d
107, 120 (1981).
We find no reason to disturb the trial judge's ruling in
the present case. The testimony at the suppression hearing
established that the defendant's statements were not the products
of coercion. Although there is photographic evidence that a mark
was present on the defendant's forehead after he made his
statement, there was no testimony that the defendant received that
injury while he was in police custody, or that he did not have that
injury before being taken into custody. In fact, the evidence in
this case suggests otherwise. Dernbach's testimony showed that the
defendant had sustained his one visible injury sometime before he
was taken into custody, when he was the victim of a robbery. The
defendant told Dernbach that the officers had treated him all right
and did not have any complaints about his treatment. In addition,
all the officers who took part in the interrogation of the
defendant denied any mistreatment of him. It was the trial judge's
responsibility to determine the credibility of the witnesses, and
he was entitled to credit the testimony introduced by the
prosecution. On this record, we cannot say that the decision to
deny the defendant's suppression motion was contrary to the
manifest weight of the evidence.
D
The defendant next argues that the trial judge erred in
allowing the State to introduce into evidence in this case the
defendant's testimony at Leroy Orange's trial on these charges and
the defendant's testimony at his own earlier sentencing hearing.
The defendant raises three arguments in support of the exclusion of
these statements. The defendant contends that in introducing the
earlier testimony the State was presenting false evidence. In
addition, the defendant argues that the testimony he gave at
Orange's trial resulted from a conflict of interests on the part of
his former trial attorney and must now be excluded on that ground.
Finally, the defendant maintains that the testimony at the earlier
sentencing hearing was tainted by the defective guilty plea that
preceded it. The defendant moved before and during trial to exclude
the two statements, but the trial judge refused to do so, and the
evidence was admitted over the defendant's objections. We believe
that both statements were admissible, and we find no error in their
introduction into evidence in the present case.
The defendant first argues that both excerpts of his
earlier testimony required exclusion here because the evidence was
false. The defendant contends that admission of the statements in
the present case therefore violated the rule forbidding the
prosecution to knowingly present perjured testimony. See Napue v.
Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 1221, 79 S. Ct.
1173, 1177 (1959); People v. Jimerson, 166 Ill. 2d 211, 223 (1995).
In support of this theory, the defendant notes that when
he testified at Orange's trial, the prosecution impeached him with
the statements he made to the police following his arrest; in the
station house statements, the defendant said only that he was
present at the crime scene, and he maintained that he did not take
part in the commission of the offenses. The defendant apparently
believes that the State has conceded the falsity of any statement
by the defendant in which he admits his involvement in these
offenses.
We do not believe that the rule prohibiting the
prosecution's knowing use of perjured testimony is applicable here,
or was designed to reach the conduct complained of in this case.
The statements at issue were all made by the defendant and, so long
as they were relevant to the case, could be introduced against him
as admissions of a party opponent. People v. Simpson, 68 Ill. 2d
276, 282 (1977); Gillson v. Gulf, Mobile & Ohio R.R. Co., 42 Ill.
2d 193, 197 (1969). If the defendant has given various accounts of
his activities on the night of the offenses, then, as the trial
judge noted in refusing the exclude the prior testimony, "that's
his problem, and he has to live with it." We do not believe that
the State must now be disabled from presenting the defendant's
earlier inculpatory statements simply because there are
discrepancies in what the defendant has said at different times on
different occasions.
The defendant also argues that his testimony at the
Orange trial must be excluded because it was the product of a
conflict of interest involving his former attorney, Earl
Washington. Washington originally represented both the defendant
and Leroy Orange on these charges. Washington later withdrew from
the defendant's case, however, and the public defender was then
appointed to represent the defendant in this case.
The defendant notes that under the present Rules of
Professional Conduct, an attorney who ceases to represent a client
may not later pursue a course of representation that is inimical to
the earlier client's interests. 134 Ill. 2d R. 1.9. The defendant
also cites cases in which an attorney has appeared as both
prosecutor and defense counsel in the same proceeding. See People
v. Lawson, 163 Ill. 2d 187 (1994); People v. Kester, 66 Ill. 2d 162
(1977). The defendant likens Washington's role here to that of a
prosecutor, for, as the defendant notes, Washington pursued a
theory of defense at Orange's trial that alleged the defendant's
sole responsibility for these crimes.
We find no evidence here that the defendant's testimony
in his brother's case can be attributed to a conflict of interests
involving the defendant, Earl Washington, and Orange. Washington
was no longer representing the defendant when the defendant
testified at Orange's trial; Washington's representation of the
defendant had ceased long before that point. Although the defendant
notes that Washington later provided authorities with information
incriminating to the defendant in another case, which is the
subject of a separate prosecution (see People v. Kidd, 147 Ill. 2d
510 (1992)), the defendant fails to explain how his decision to
testify on Orange's behalf at Orange's trial was anything other
than the defendant's own decision, or how Washington exploited any
confidential information he might have acquired during his former
representation of the defendant.
The defendant has not identified any particular facts
that show how his testimony at Orange's trial resulted from a
conflict of interests. Assuming that exclusion would be necessary
if the defendant's prior testimony was a consequence of his former
attorney's conflicting interests, we do not believe that the
defendant has established the factual predicate that would trigger
application of that rule. We find no error in the trial judge's
decision here to allow the State to present the testimony given by
the defendant at Leroy Orange's trial.
The defendant raises an additional challenge to the use
in this case of the testimony he gave following an earlier plea of
guilty to these charges. The defendant was sentenced to death at
that time. The plea was defective, however, and was vacated by this
court on appeal (People v. Kidd, 129 Ill. 2d 432, 443-47 (1989))
because the defendant had not been told of the minimum mandatory
sentence he would face if convicted on the charges. Of course, at
trial below, the jury was informed only that the defendant's
testimony was from a prior, unspecified proceeding; the jurors were
not told of the defendant's earlier plea or sentence or the outcome
of the earlier appeal.
The defendant contends that the invalidity of the plea
that preceded the earlier sentencing hearing tainted his testimony
at that hearing and rendered those statements inadmissible at the
present trial, or, as the State aptly notes, that the testimony at
the sentencing hearing was the "fruit of a poisonous plea." As a
preliminary matter, we do not agree with the State that the
defendant has waived consideration of this point. During trial, in
seeking to exclude this evidence, defense counsel argued that
vacatur of the plea should preclude use of the testimony from the
sentencing hearing. We conclude that counsel preserved the
objection.
Turning to the merits of the defendant's argument, we do
not believe that the invalidity of the defendant's prior plea
necessitates the exclusion of the testimony given by the defendant
at the ensuing sentencing hearing. In the present circumstances,
there would be no point in precluding the State from using
testimony given by the defendant at the sentencing hearing that
followed the plea. The defendant's testimony was voluntary, and we
do not believe that a rule requiring its exclusion can be justified
as a means of deterring the occasional errors committed by judges
in accepting guilty pleas.
Citing Harrison v. United States, 392 U.S. 219, 20 L. Ed.
2d 1047, 88 S. Ct. 2008 (1968), the defendant asserts that the
testimony he gave at the earlier sentencing hearing was the product
of the invalid plea that preceded it. We believe that Harrison is
distinguishable. In that case, the defendant's confessions were
introduced into evidence at trial, and the defendant testified in
his own behalf, seeking to overcome the impact of those statements.
The defendant's conviction was reversed on appeal, however, because
the statements were inadmissible. On retrial, the prosecution
introduced Harrison's testimony from the first trial. The Supreme
Court held that the testimony given by Harrison at the original
trial had been offered by the defendant to overcome the impact of
the illegally admitted evidence, and thus the testimony could not
later be used against him as evidence of guilt.
In the present case, unlike Harrison, there was no causal
connection between the trial judge's failure to correctly admonish
the defendant about his minimum sentence and the defendant's
subsequent testimony at the sentencing hearing, during which he
admitted his involvement in these crimes. In the present case, the
defendant's testimony at his sentencing hearing was consistent with
his earlier plea, and, unlike the testimony in Harrison, cannot be
said to have been offered by him to overcome the impact of the
earlier illegality. The defendant in this case voluntarily chose to
testify at that time.
In any event, we believe that any error in the
introduction of the testimony from the sentencing hearing was
harmless beyond a reasonable doubt. See Arizona v. Fulminante, 499
U.S. 279, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991). The
prosecution introduced other inculpatory statements by the
defendant, including his testimony at Orange's trial, in which the
defendant admitted his participation in the crimes. Other evidence
established that the defendant had directed the police to where the
murder weapons could be found. On this record, we believe that any
error in the introduction of the sentencing hearing testimony was
harmless beyond a reasonable doubt.
E
The defendant next asserts error in the State's use at
trial of identification testimony by a fireman who saw the
defendant at the crime scene shortly after the commission of the
offenses charged here. Chicago fire fighter James Thomas testified
that as he was walking to a fire engine to obtain a piece of
equipment, someone approached him and asked whether anyone inside
the building had died; Thomas replied affirmatively. The person
then asked whether the bodies had burned; Thomas replied that they
had not burned. According to Thomas, the person then uttered the
word "Damn" and walked away. This encounter occurred sometime
before 7 o'clock on the morning of the fire, January 12, 1983. Two
days later, on January 14, Thomas was reading a newspaper account
of the offenses and thought that he recognized one of the two men
pictured in the story as the person who had approached him with the
question about the victims. Thomas relayed this information to his
lieutenant. Several days later, police officers showed Thomas the
same news story, and Thomas made the same identification. At trial,
Thomas identified the defendant as the man who had approached him
at the fire and as the person whose photograph he had seen in the
newspaper.
The defendant argues that Thomas' identification was
tainted because officers showed Thomas the same newspaper
photographs and failed to conduct a lineup. We do not agree. The
witness' in-court identification of the defendant had an
independent origin and was not based on any allegedly suggestive
technique employed by the police. See Simmons v. United States, 390
U.S. 377, 384, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967, 971 (1968);
People v. Williams, 60 Ill. 2d 1, 10-11 (1975).
Nor do we agree with the defendant that the State
misrepresented to the jury the strength of the witness' testimony.
In a voir dire examination conducted outside the presence of the
jury, Thomas allowed that he was not certain that the defendant was
the man whom he had seen on the morning of the fire; Thomas said,
"To be perfectly honest, I couldn't say exactly that that's the
man." Before the jury, on direct examination, the prosecutor simply
asked Thomas whether the person Thomas had talked to on the morning
of the fire was in the courtroom; Thomas replied that the man was
in the courtroom and identified the defendant. Later, during cross-
examination, Thomas acknowledged that he was not absolutely certain
that the defendant was the man he had seen. The circumstances of
Thomas' identification of the defendant were before the jury,
including the details of their brief conversation more than nine
years before the present trial. We find no error in the admission
of this testimony.
F
The defendant next complains of the admission of certain
testimony at the guilt phase of the proceedings below. The
defendant first argues that the medical examiner provided
speculative testimony regarding which of the four weapons used by
the offenders in this case could have produced the injuries
sustained by the victims. Dr. Nancy Jones, a forensic pathologist
employed in the Cook County medical examiner's office, testified
regarding the autopsies performed on the victims by Dr. Robert
Stein, the former chief medical examiner of Cook County, who had
since retired and who did not testify at trial. Dr. Evans had
reviewed Dr. Stein's reports, and she had also examined the
photographs depicting the victims' injuries. Dr. Evans had also
compared the four knives recovered by authorities in their
investigation of the case with the information concerning the
victims' stab wounds, and in her testimony she explained which
knives could have caused the injuries to the victims. The defendant
argues that this portion of Dr. Evans' testimony was speculative at
best, challenging the basis for many of her conclusions.
Defense counsel was, of course, free to cross-examine the
witness on the strength of her testimony, and on her ability to
assess, from Dr. Stein's reports and from her own observations of
the knives and morgue photographs, which weapons might have been
used. We believe that the weaknesses the defendant perceives in Dr.
Jones' testimony pertain to its strength rather than to its
admissibility, and we do not believe that the trial judge erred in
permitting the jury to hear this evidence.
The defendant also argues that Detective McCabe offered
improper hearsay testimony when he repeated to the jury Mildred
Orange's summary of her telephone conversation with the defendant
on the afternoon of January 12. The trial judge overruled defense
counsel's hearsay objection to the testimony. We agree with the
defendant that this portion of McCabe's testimony was hearsay and
should not have been admitted into evidence. We do not, however,
believe that the defendant was denied a fair trial by the judge's
adverse ruling. The jury had already heard Mrs. Orange testify to
the same statement by the defendant, and, as the trial judge noted,
McCabe's separate account was essentially cumulative of the earlier
testimony.
The defendant contends, however, that McCabe added to the
description of the telephone conversation a detail that was absent
from Mrs. Orange's account. According to McCabe, the defendant told
Mrs. Orange that what he and Leroy had done had occurred "last
night." The defendant notes that the prosecutor found this
additional bit of information significant enough to be worthy of
mention in closing argument.
We do not believe that the trial judge's decision to
admit this testimony could have denied the defendant a fair trial.
The evidence of the defendant's guilt for these offenses was
overwhelming, and we do not believe that the present hearsay
testimony proved to be prejudicial. The jury heard the series of
statements in which the defendant admitted a role in these crimes,
and the testimony describing the way in which the defendant was
able to lead investigators to the murder weapons.
In a further challenge to evidence presented at trial,
the defendant argues that Mildred Orange was improperly allowed to
provide the jury with her assessment of the defendant's
personality. The testimony was presented when the prosecutor asked
Mrs. Orange whether or not the defendant had a compliant
personality. Mrs. Orange replied that he did not, saying that the
defendant "did whatever he wanted to do." The trial judge overruled
the defendant's objection to Mrs. Orange's comment. On appeal, the
defendant renews his contention that the witness was not qualified
to provide an assessment of his personality. We do not consider
here whether Mrs. Orange was properly qualified to express an
opinion on the subject, for, even if she was not, we do not believe
that the admission of the testimony was prejudicial to the
defendant. As we have noted, the State presented overwhelming
evidence of the defendant's guilt. Although the defense offered
evidence of the defendant's compliant personality to help explain
what led the defendant to testify at Leroy Orange's trial, we do
not believe that this brief attempt by the State to rebut a portion
of the defense theory could have deprived the defendant of a fair
trial.
G
The defendant next argues that the trial judge abused his
discretion in allowing the jury, at the close of the State's case
in chief, to view a large number of photographs of the decedents.
These pictures were taken either at the crime scene or during the
autopsies of the victims, and they depict the victims' injuries and
the condition in which the victims were found.
"Photographs of a victim, though gruesome, may be
admissible if relevant. (People v. Shum (1987), 117 Ill. 2d 317,
353-54; People v. Lindgren (1980), 79 Ill. 2d 129, 143.) The
decision whether to admit photographs into evidence is committed to
the discretion of the trial judge, whose determination will be
upheld unless it is an abuse of discretion. People v. Rissley
(1995), 165 Ill. 2d 364, 403; Shum, 117 Ill. 2d at 353." People v.
Bounds, 171 Ill. 2d 1, 47 (1995).
In the present case, the trial judge examined the
photographs in chambers before allowing the jury to view them.
Following that evaluation, the judge concluded that a number of
them could not be presented to the jury. The judge permitted the
jury to see the remainder of the photographs, approximately 40 in
all. We have reviewed the same exhibits and find no abuse of
discretion in the trial judge's determination of which exhibits
could be shown to the jury.
This court has previously observed that photographic
evidence is admissible to show the nature and extent of a victim's
injuries, the condition or location of a body at the crime scene,
or the manner or cause of death, among other uses. People v.
Henderson, 142 Ill. 2d 258, 319-20 (1990). The photographs
challenged by the defendant fulfilled these purposes here. They
showed the restraints used on the victims, as well as the number
and severity of their stab wounds. In addition, the photographs
assisted the jury in understanding the forensic testimony
introduced by the prosecution. We find no abuse of discretion in
the use of these photographs at trial.
The defendant also complains that the timing of the
publication of these exhibits was especially prejudicial. The
photographs were shown to the jury over the defendant's objection
at the close of the State's case in chief. Trial counsel thought
that the nature of the photographs would distract the jurors from
a consideration of the defendant's evidence, and counsel wanted to
postpone presentation of these exhibits until the close of evidence
in the case.
We do not believe that the judge abused his discretion in
permitting the photographs to be shown to the jury at the close of
the State's evidence. The photographs had been referred to
extensively in the earlier testimony, and that was a logical point
in the proceedings at which to publish them to the jury. The
disturbing nature of these exhibits would not have been reduced by
delaying their presentation; they were admissible, and they could
be shown to the jury.
H
The defendant also raises a number of challenges to
various portions of the State's closing argument at trial. The
defendant first complains of a series of remarks that, he contends,
improperly disparaged defense counsel and denigrated the defense
attorneys' efforts on behalf of their client. At one point, the
prosecutor said, "It is our job to assure that justice is done and
the truth be told." Defense counsel did not object to that comment,
and therefore any challenge here has been waived. Later, in
rebuttal, the prosecutor said that the defendant's various lies
were designed to distract the jurors and to muddy up the waters.
The trial judge overruled defense counsel's objections to these
remarks. Unlike the defendant we do not believe that these last
remarks were targeted at defense counsel; the prosecutor was
referring to the defendant, not to his attorneys. We find no error
in the remarks, which were fair comments on the evidence.
The defendant also challenges a remark by the prosecutor
that a not-guilty verdict would enable the defendant to avoid
punishment for the present offenses and thus commit the perfect
crime. We agree with the State that the jurors would not have
construed this comment as an attack on the integrity of defense
counsel. Counsel did not object to the later comment that, "to that
end, he dispatches his attorneys up here," and we thus conclude
that the defendant has waived his challenge to that remark.
The trial judge sustained defense counsel's objection to
a comment that one imperfection of the criminal justice system is
that the defendant can "lie and lie and lie" and that his attorneys
"can stand up here and argue to you that those lies stand as proof
of his innocence." In light of the judge's ruling, we do not
consider this comment further.
The defendant next cites a comment by the prosecutor
declaring that defense counsel had made a "bald-faced claim" in
opening statement. In this remark, the prosecutor was referring to
defense counsel's earlier assertion that Leroy Orange had led
police to the murder weapons; no evidence was presented to support
that proposition, however, and thus we agree with the State that
the comment was not unwarranted.
The defendant also takes issue with a remark in which the
prosecutor asserted that defense counsel wanted the jury to
misunderstand the significance of the clothing found by Mrs. Orange
after the offenses here. The interpretation of this evidence was
the subject of some dispute by the parties, and we do not believe
that the prosecutor's brief comment was unfair or unwarranted.
The defendant next complains that the prosecution
misstated the law of accountability at various points during
summation and rebuttal by misrepresenting the mental state
necessary to sustain a verdict under an accountability theory. The
prosecutors made a number of comments concerning accountability;
one of them also read the accountability instruction to the jurors.
We note that defense counsel did not object to all the comments
cited in the defendant's brief, and therefore the challenges to
those remarks have been waived. We believe that, taken as a whole,
the comments by the prosecution on accountability were not
misleading. We note that the jurors received accurate instructions
setting forth the law of accountability. In addition, the jurors
were properly instructed regarding the purpose of closing
arguments.
The defendant also contends that a further comment by the
prosecutor aggravated these alleged errors, when the prosecutor
stated, in rebuttal, that the burden of proof beyond a reasonable
doubt "is a burden of proof that is met in courtrooms across this
county and in this building each and every day, and it is a burden
of proof that has been met here." The defendant contends that this
last comment improperly minimized the importance of the State's
burden of proof. Defense counsel did not object to this last
comment, however, and therefore has waived this contention. We
note, moreover, that this court has previously rejected the
argument that comments of this nature improperly reduce the State's
burden of proof. People v. Gacho, 122 Ill. 2d 221, 255 (1988).
The defendant also complains that, in another series of
comments, the prosecutor improperly criticized a defense witness
and her testimony concerning the defendant's mental abilities. In
argument, the prosecution referred to the witness on one occasion
as "Miss Wetzel," though she possessed a Ph.D. degree, and said
that it was "unfortunate indeed that she didn't test [the
defendant's] moral fiber because we would have found he has none."
The prosecutor also argued that the witness' testimony was
irrelevant and said that the defendant was not mentally retarded.
In addition, the prosecutor asserted that, by the law of averages,
half the population must be of below-average intelligence. The
defendant maintains that Dr. Wetzel's testimony was relevant in
this case, and asserts that the evidence established that the
defendant was mentally retarded. We believe that the preceding
remarks were either fair comments on the evidence in the case, or
were so minor that they could have had no influence on the jury's
deliberations.
The defendant's final challenge to the State's closing
argument at trial involves a comment by the prosecutor concerning
the victims' surviving family members. At the conclusion of his
rebuttal argument, the prosecutor stated:
"After today, when you think about this case,
however often or however seldom, when you do think
about it, think about Renee and Michelle and
Ricardo. If you're religious, offer a prayer. If
you're not, just--just imagine what this must have
been like for them, and imagine what it's like now
for the family. When you think about the case, shed
a tear for Tony Coleman.
[Defense counsel]: Objection.
THE COURT: Sustained. The jury will disregard
that.
MR. JOYCE: Well, just think then about this
nine-year-old boy who will never light up his
grandfather's home with his infectious smile, who
was nine years old and today is nine years dead.
Remember him however you will, but remember him not
because that is the least, but because that is the
beginning--the beginning of the very least we can
do. Thank you."
The trial judge's ruling sustaining the defendant's objection to
the initial reference to the victims should have been sufficient to
forestall any prejudice. We do not believe that the rhetorical
flourish of the prosecutor's ensuing comment could have been
prejudicial here.
I
The defendant argues that there was insufficient evidence
of facts supporting his convictions for felony murder and armed
robbery. Armed robbery served as the predicate felony for the
felony murder charges, and the defendant argues here that the
State's evidence failed to establish that offense. The armed
robbery charge alleged the defendant's taking of Ricardo Pedro's
watch, which the defendant was wearing at the time of his arrest.
The defendant argues that the prosecution was required to prove
that he used force or the threat of force as the means of taking
the property from the victim. Citing People v. Tiller, 94 Ill. 2d
303 (1982), and People v. Pack, 34 Ill. App. 3d 894 (1976), the
defendant believes that the evidence in this case establishes
nothing more than that he took the watch from Pedro as an
afterthought.
Section 18--1(a) of the Criminal Code of 1961 defines the
offense of robbery in the following terms: "A person commits
robbery when he takes property from the person or presence of
another by the use of force or by threatening the imminent use of
force." Ill. Rev. Stat. 1983, ch. 38, par. 18--1(a). Armed robbery
is the commission of robbery while armed with a dangerous weapon.
Ill. Rev. Stat. 1983, ch. 38, par. 18--2(a).
This court addressed a similar argument in People v.
Strickland, 154 Ill. 2d 489, 523-25 (1992). In that case, we
rejected a defendant's contention that his armed robbery conviction
had to be reversed because there was insufficient evidence that the
force exerted by the defendant against the victim was intended or
used as a means of taking the victim's property. The court quoted
the following language from People v. Jordan, 303 Ill. 316, 319
(1922):
"The fact that the defendant [sic] had been reduced
to a state of physical non-resistance before his
money was taken does not relieve the crime of the
quality constituting robbery. If, as the result of
a quarrel, a fight occurs in which one of the
parties is overcome, and the other then, without
having formed the intention before the fight began,
takes the money of the vanquished one, the offense
committed is robbery."
Strickland found the principle expressed in Jordan, a
decision under former law, to be applicable to the current statute
as well. Strickland, 154 Ill. 2d at 524. "Section 18--1 of the
Criminal Code requires that the taking be accomplished by force or
the threat of force. Such was obviously the case here, regardless
of whether the defendant had previously formulated an intent to
take the [victim's] weapon or other property." Strickland, 154 Ill.
2d at 524-25.
We believe the evidence in this case was sufficient to
establish the defendant's guilt for armed robbery. When the
defendant was asked by the police how he happened to have Pedro's
watch, the defendant initially explained that he had received it
from the victim in exchange for the TV/radio. The defendant later
said that Pedro had given him the watch but had asked him not to
tell Leroy Orange about the gift. In his testimony at Orange's
trial, however, the defendant said that he stabbed Pedro, later
took the watch from Pedro's arm, and subsequently murdered him. The
jury was entitled to accept this last explanation as the truth, and
we find no reason here to disturb these verdicts. Moreover, even if
the defendant's use of force preceded the actual taking of the
property, the offense would still be armed robbery under Strickland
and Jordan. As in Strickland, we conclude that there was the
necessary concurrence between the defendant's use of force and his
taking of Ricardo Pedro's watch. See also People v. Ward, 154 Ill.
2d 272 (1992); People v. Blake, 144 Ill. 2d 314 (1991); People v.
Williams, 118 Ill. 2d 407 (1987).
J
The defendant next argues that the trial judge erred in
denying one of the issues raised by the defendant in a pro se post-
trial motion without having first appointed new counsel to
represent him. The defendant asserts that once he submitted a pro
se motion for a new trial that challenged the conduct of the trial
attorneys, the judge was obligated to appoint alternative counsel
to represent him on the motion. Among the numerous claims raised in
the two post-trial motions filed by the defendant pro se was the
charge that trial counsel failed to subpoena and present at trial
the testimony of two alibi witnesses. The motion in which this
allegation appears does not identify these persons or otherwise
shed any light on who they might be. On appeal, the defendant
argues that he was essentially raising an ineffective assistance
claim, though his motions do not couch the point in those terms,
and the defendant insists that he was entitled to have different
counsel represent him on the issue. See People v. Krankel, 102 Ill.
2d 181, 189 (1984). We do not agree.
In People v. Nitz, 143 Ill. 2d 82, 133-35 (1991), this
court determined that different counsel is not automatically
required in every case in which a defendant files a motion
challenging the performance of his trial attorney. See also People
v. Williams, 147 Ill. 2d 173, 250-53 (1991). If the matters raised
in a defendant's pro se motion clearly lack merit or merely pertain
to matters of trial strategy, the trial court "may dispose of the
motion without having appointed a new attorney to assist the
defendant in the presentation of those claims." People v.
Strickland, 154 Ill. 2d 489, 527 (1992). "If, however, the
defendant's allegations of incompetence indicate that trial counsel
neglected the defendant's case, the court should appoint new
counsel to argue defendant's claims of ineffective assistance of
counsel." Nitz, 143 Ill. 2d at 134-35.
Here, the only pro se allegation mentioned by the
defendant on appeal involves counsel's failure to call two unnamed
alibi witnesses to testify in the defendant's behalf at trial.
Whether to call certain witnesses and whether to present an alibi
defense are matters of trial strategy, generally reserved to the
discretion of trial counsel. See People v. Ramey, 152 Ill. 2d 41,
53-54 (1992). We would note that an alibi defense would have been
particularly weak in this case, given the series of statements made
by the defendant in which he placed himself at the crime scene,
whether as a passive onlooker to his brother's rampage or as an
active participant in the offenses. Because the matter complained
of clearly lacked merit and simply involved a question of trial
strategy, we conclude that the trial judge did not err in failing
to appoint counsel to represent the defendant in connection with
this allegation in the pro se motion.
K
The defendant next argues that his conviction for
aggravated arson must be reversed because the statute on which the
charge is based has been declared unconstitutional. The State
agrees with the defendant that the conviction is invalid. The
parties do not agree, however, on the effect of the reversal on the
defendant's death sentence. The defendant was convicted of
aggravated arson under section 20--1.1(a)(1) of the Criminal Code
of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 20--1.1(a)(1)); that
provision has been held unconstitutional, however (People v.
Johnson, 114 Ill. 2d 69, 73 (1986)), and convictions under the
unconstitutional statute have accordingly been reversed on appeal
(see People v. Kidd, 129 Ill. 2d 432, 457 (1989); People v. Orange,
121 Ill. 2d 364, 392 (1988)). The same result is necessary here,
and therefore we reverse the defendant's conviction for aggravated
arson and vacate the 30-year sentence imposed for that offense.
The defendant also briefly contends that the invalidity
of the aggravated arson conviction requires that he receive a new
sentencing hearing. The same argument was rejected in Orange, 121
Ill. 2d at 392-93, and we believe the same result appropriate here.
The aggravated arson charge did not form the basis for any one of
the three statutory aggravating circumstances used to establish the
defendant's eligibility for the death penalty in this case. Nor did
the additional conviction figure prominently at the second stage of
the sentencing hearing, when the jury determined whether the
defendant should be sentenced to death. Moreover, notwithstanding
the invalidity of the statute defining the charged offense, the
jury was free to consider the conduct on which the charge was
based. We conclude here, as we did in Orange, that the reversal of
the defendant's conviction for aggravated arson conviction does not
require a new sentencing hearing.
II. Sentencing Issues
A
The defendant also makes a number of challenges to the
death sentence proceedings conducted in this case. The defendant
first raises several arguments with respect to the trial judge's
examination of the prospective jurors concerning their attitudes
toward capital punishment. The defendant contends that the
questioning conducted by the judge in this case failed to properly
"life qualify" the venire under Morgan v. Illinois, 504 U.S. 719,
119 L. Ed. 2d 492, 112 S. Ct. 2222 (1992), and that the judge erred
in refusing to use several questions proposed by defense counsel.
The defendant maintains that the questions used by the judge did
not properly detect members of the venire who would automatically
vote to impose the death penalty.
We believe that the judge's inquiry was sufficient to
satisfy the requirements of Morgan. In the present case, the judge
asked each prospective juror whether the person would automatically
vote for the death penalty no matter what the facts of the case
might be. In addition, the judge asked whether the person could
consider all the possible penalties under the law if the defendant
were found guilty. We believe that the trial judge's inquiry was
sufficient under Morgan.
In a further argument relating to jury selection, the
defendant contends that the voir dire responses of two of the
persons who served on the jury in this case demonstrated their
inability to impartially determine whether the defendant was
deserving of the death penalty. The State responds that the jurors
did not make disqualifying statements at voir dire and were
properly allowed to serve on the jury. The State also observes that
defense counsel waived any objection to these persons because the
attorneys did not make any challenges to these members of the
venire. We agree with the State that the defendant waived his
objections to these two jurors (People v. Collins, 106 Ill. 2d 237,
271-72 (1985)), and we need not consider these contentions further.
B
The defendant next raises two arguments relating to the
first stage of the capital sentencing hearing. The defendant argues
that the prosecutor made an improper appeal to the jury at the
conclusion of the eligibility stage of the hearing when, in
rebuttal argument, he said that defense counsel, in requesting the
jury to find the defendant not eligible for the death penalty, was
in reality asking the jurors to violate their oaths and abrogate
their responsibilities. The trial judge overruled defense counsel's
objections to these comments. The defendant argues that the
prosecutor's remarks improperly accused defense counsel of urging
the jury to violate the law.
Construed in context, the prosecutor's remarks were
unobjectionable. Defense counsel had already argued to the jury
that the defendant would be spared from the death sentence if only
one juror refused to sign the verdicts finding the defendant
eligible for the death penalty. Proof of the defendant's
eligibility for the death penalty was overwhelming, and defense
counsel's argument was simply an appeal to the jury to ignore the
evidence in the case and to refuse to find the defendant eligible
for the death penalty. We believe that the prosecutor's rebuttal
argument, in the context in which it occurred, was a fair reply to
defense counsel's own impassioned appeal.
The defendant also challenges the constitutionality of
one of the statutory aggravating circumstances used in this case to
establish the defendant's eligibility for the death penalty.
Section 9--1(b)(7) of the Criminal Code of 1961 authorizes the
imposition of the death penalty if "the murdered individual was
under 12 years of age and the death resulted from exceptionally
brutal or heinous behavior indicative of wanton cruelty." Ill. Rev.
Stat. 1983, ch. 38, par. 9--1(b)(7). One of the victims in the
present case, Anthony Coleman, was nine years old at the time of
his death.
The defendant argues that the preceding provision is
unconstitutionally vague. See Maynard v. Cartwright, 486 U.S. 356,
100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988). In our earlier opinion
in this case, however, we upheld the validity of this aggravating
circumstance against an identical challenge. Although at that time
this court determined that the defendant's guilty plea was invalid
and vacated the defendant's convictions and sentences and remanded
the cause for further proceedings, the court also addressed several
challenges raised by the defendant that were likely to arise on
retrial, including the defendant's challenge to the validity of the
section 9--1(b)(7). People v. Kidd, 129 Ill. 2d 432, 454-56 (1989).
That determination became the law of the case, and we will not
disturb it here. We note that the jury in the present case received
instructions defining the terms "brutal" and "heinous."
Finally, if any doubt should remain concerning the
validity of the aggravating circumstance used in this case, with
the special instructions defining the relevant terms, we would
observe that two other statutory aggravating circumstance
independently supported the jury's eligibility finding, in addition
to the circumstance being challenged here. In the present case, the
jury also found the defendant eligible for the death penalty on the
ground that he murdered more than one person, and on the ground
that he committed a felony during the course of one murder. Ill.
Rev. Stat. 1983, ch. 38, pars. 9--1(b)(3), (b)(6). The jury
returned separate findings on each aggravating circumstance, and
therefore the alleged invalidity of this third aggravating
circumstance would not have affected the determination that the
defendant was eligible for the death penalty. The defendant does
not contend that any infirmity in the provision found in section 9-
-1(b)(7) would have spilled over into the second stage of the
sentencing hearing.
C
The defendant also contends that the trial judge erred in
refusing jury instructions tendered by defense counsel regarding
certain nonstatutory mitigating circumstances at the conclusion of
the second stage of the death penalty. Counsel wanted the jurors to
be specifically instructed that mitigating circumstances included,
among other things, the defendant's mental retardation, his abusive
home life, and his deprived childhood. The trial judge refused the
tendered instructions.
We agree with the State that no error occurred in the
trial judge's refusal of the instructions submitted by defense
counsel. The jurors were told, pursuant to the pattern
instructions, that mitigating factors included "[a]ny other reason
supported by the evidence why the defendant should not be sentenced
to death." Illinois Pattern Jury Instructions, Criminal, No. 7C.06
(3d ed. 1992). The jurors were thus apprised that they were to
consider any relevant circumstance in making their decision, and we
find no error in the trial judge's refusal of the proffered
instructions. This court has previously rejected efforts to define
the term "mitigating factor" (People v. Gilliam, 172 Ill. 2d 484,
520 (1996)), or, as in this case, to specify nonstatutory
mitigation at the second stage of the death penalty hearing (People
v. Gosier, 145 Ill. 2d 127, 159-60 (1991); People v. Spreitzer, 123
Ill. 2d 1, 40-41 (1988); People v. Stewart, 104 Ill. 2d 463, 492-93
(1984); People v. Free, 94 Ill. 2d 378, 419-20 (1983)).
D
The defendant next raises a series of arguments regarding
the prosecution's conduct at the second stage of the capital
sentencing hearing. The defendant first challenges portions of the
prosecution's closing argument. The defendant contends that the
prosecutor improperly told the jurors that if they did not vote in
favor of imposing the death penalty in this case, they would have
abrogated their oaths. After referring to the defense evidence
regarding the impact of the death of the defendant's father on the
defendant, the prosecutor said, "That's the excuse that they want
to utilize for you to abrogate your oath." The trial judge
sustained the defendant's objection to this last comment and
instructed the jury to disregard it. We believe that the trial
judge's prompt action in sustaining the defendant's objection was
sufficient to cure any prejudice the comment might otherwise have
engendered. See People v. Tenner, 157 Ill. 2d 341, 384-85 (1993);
People v. Baptist, 76 Ill. 2d 19, 30 (1979).
In addition, the defendant complains that the prosecutor
told the jury that if the defendant were not sentenced to death, he
would pose a threat to everyone in the penitentiary. The defendant
argues that these comments violated People v. Hooper, 133 Ill. 2d
469, 500 (1989). Hooper, however, only forbids comments that are
not based on the evidence. We believe that the evidence in this
case supported the prosecutor's argument that the defendant would
pose a threat to others if he received a sentence of imprisonment.
For evidence in aggravation, the State presented extensive
testimony detailing the defendant's prior infractions in jail and
in prison. These involved numerous altercations with other inmates
and with correctional personnel, as well as threats made by the
defendant against others. Because there was evidence of the
defendant's prior misconduct while incarcerated, we believe that it
was proper for the State to argue that the defendant would be a
threat to others if he did not receive the death penalty. See
People v. Bounds, 171 Ill. 2d 1, 66 (1995); People v. Johnson, 146
Ill. 2d 109, 148-49 (1991); see also Simmons v. South Carolina, 512
U.S. ___, ___ n.5, 129 L. Ed. 2d 133, 143 n.5, 114 S. Ct. 2187,
2194 n.5 (1994) ("Of course, the fact that a defendant is parole
ineligible does not prevent the State from arguing that the
defendant poses a future danger. The State is free to argue that
the defendant will pose a danger to others in prison and that
executing him is the only means of eliminating the threat to the
safety of other inmates or prison staff").
The defendant next complains that the prosecution invited
the jury to vindicate the victims for the crimes committed against
them, and that the prosecution misstated the law applicable to the
defendant's mitigating evidence. The prosecutor argued, "Anthony
Coleman is dead and someone has to speak for him. Question you have
to decide with respect to the law isn't whether there are any
mitigating factors--." Defense counsel interposed an objection, and
the trial judge reserved ruling on the objection; the prosecutor
went on to say that the question the jury had to decide was whether
the evidence in mitigation was sufficient to preclude a sentence of
death; the trial judge overruled defense counsel's objection to
this last comment. It was an accurate statement of law, and we find
no error in the judge's ruling.
The defendant also complains of a statement in which the
prosecutor said, "[The defendant] deserves four death sentences,
one for Ricardo, one for Renee, one for Michelle, and however many
you can conceive of for Anthony." Defense counsel did not object to
this last comment, and therefore we consider his argument waived.
In any event, we do not believe that the remark would have caused
the jury to ignore its instructions or to disregard the evidence in
the case.
The defendant also objects to comments by the prosecutor
disputing the mitigating nature of the evidence introduced by the
defense, which included testimony describing the defendant's mental
retardation, organic brain disorder, epilepsy, and deprived and
abused childhood. We find no error here. Our cases have held that
the State is not required to agree with the defendant that the
evidence presented by the defense in mitigation is actually
mitigating. People v. Cole, 172 Ill. 2d 85, 112 (1996); People v.
Page, 155 Ill. 2d 232, 277-80 (1993); People v. Bean, 137 Ill. 2d
65, 124-27 (1990); see also People v. Henderson, 142 Ill. 2d 258,
335-41 (1990) (trial judge's failure to view defendant's evidence
as mitigating). As the Supreme Court noted in Penry v. Lynaugh, 492
U.S. 302, 324, 106 L. Ed. 2d 256, 281, 109 S. Ct. 2934, 2949
(1989), "Penry's mental retardation and history of abuse is thus a
two-edged sword: it may diminish his blameworthiness for his crime
even as it indicates that there is a probability that he will be
dangerous in the future."
The defendant raises a final series of arguments
challenging the prosecution's actions at the second stage of the
sentencing hearing. First, the defendant complains of conduct by
the prosecutor during the cross-examination of Dr. Savarese. The
defendant complains that the prosecutor screamed questions at the
witness and, in asking the witness about his evaluation of the
defendant, referred to the defendant on one occasion as a "jerk"
and on another occasion as "Mr. Mentally Retarded." The trial judge
sustained defense counsel's objections to the comments, and
instructed the prosecutor to stop screaming at the witness. We
believe that these curative steps were sufficient to forestall any
prejudice.
The defendant raises several further challenges to the
prosecutor's closing argument at the sentencing hearing. The
defendant cites the prosecutor's comment that the defendant was
"supposedly retarded," the prosecutor's reference to Dr. Wetzel as
"Miss One Hundred and Fifty Dollars an Opinion," and his comment on
that witness' failure to conduct further tests of the defendant's
brain functioning. In addition, the defendant objects to the
prosecutor's characterization of the defense efforts as "pathetic"
and his statement that he would feel like Pinocchio if he were
making the defendant's arguments. We believe that three of these
comments, to which the trial judge overruled objections, were
proper. The "pathetic" appellation was apparently directed at
defense counsel's argument that sparing the defendant from the
death penalty would stop "the killing" and would put an end to the
defendant's celebrity status. Arguing that the defendant was
supposedly retarded was not a misstatement of the evidence; whether
the defendant was mentally retarded was disputed at trial. Finally,
the State could properly comment on Dr. Wetzel's failure to order
further tests that might have provided further confirmation of her
diagnosis of the defendant's mental condition. Her failure to do so
had been the subject of extensive cross-examination.
We do not consider here the two remaining comments raised
by the defendant. Defense counsel made no objection to the
prosecutor's reference to Dr. Wetzel, and her hourly rate, as "Miss
One Hundred Fifty Dollars An Opinion," and the trial judge
sustained the prosecutor's comparison of defense counsel to
Pinocchio ("If I had to stand up here and give the arguments they
gave I would feel like Pinocchio").
Although we have found no reversible error in the
arguments of the two assistant State's Attorneys, Timothy Joyce and
David O'Connor, either at trial or at sentencing, we do not intend
to suggest by our ruling that we approve of all the remarks
challenged here. Indeed, prosecutors violate the trust reposed in
them by the public when they risk reversal of an otherwise proper
conviction or death sentence for unprofessional conduct of this
nature.
E
As a final matter, the defendant raises a number of
constitutional challenges to the Illinois death penalty statute,
section 9--1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983,
ch. 38, par. 9--1). Our court has considered and rejected the same
arguments many times in the past, and the defendant offers no new
grounds that would compel a different result here.
Our cases have determined that the statute is not
unconstitutionally vague for permitting the sentencer to consider
"any" aggravating circumstance supported by the evidence (Ill. Rev.
Stat. 1983, ch. 38, pars. 9--1(c), (e)) in deciding whether to
impose the death penalty. People v. Cole, 172 Ill. 2d 85, 114
(1996); People v. Taylor, 166 Ill. 2d 414, 439 (1995); People v.
Young, 128 Ill. 2d 1, 59 (1989). This court has ruled that the
statute does not place a burden of proof on the defense that
effectively precludes the sentencing authority from giving
meaningful consideration to a defendant's mitigating evidence.
People v. Page, 155 Ill. 2d 232, 283 (1993); People v. Strickland,
154 Ill. 2d 489, 539 (1992); People v. Hampton, 147 Ill. 2d 71,
116-17 (1992).
Our cases have held that the statute is not invalid for
the discretion it gives the prosecutor in deciding whether to seek
the death penalty in a particular case. People v. Lewis, 88 Ill. 2d
129, 146 (1981); People ex rel. Carey v. Cousins, 77 Ill. 2d 531,
534-43 (1979); see also Silagy v. Peters, 905 F.2d 986, 993-94 (7th
Cir. 1990). This court has previously rejected the contention that
various features of the death penalty statute invite the arbitrary
and capricious imposition of that sentence. People v. Harris, 164
Ill. 2d 322, 352 (1994); People v. Page, 155 Ill. 2d 232, 284-85
(1993); People v. Pitsonbarger, 142 Ill. 2d 353, 409 (1990). Our
court has determined that the death penalty statute is not invalid
for failing to require the jury to make a separate determination
that death is the appropriate punishment in the case. People v.
Whitehead, 116 Ill. 2d 425, 462 (1987); People v. Montgomery, 112
Ill. 2d 517, 534 (1986); People v. Stewart, 105 Ill. 2d 22, 76-77
(1984).
The court has also held that the statute does not place
on the defendant the risk of nonpersuasion at the sentencing
hearing (People v. Fields, 135 Ill. 2d 18, 76 (1990); People v.
Orange, 121 Ill. 2d 364, 390 (1988); People v. Caballero, 102 Ill.
2d 23, 49 (1984)), and thus a defendant is not denied a fair
sentencing hearing when the prosecution is permitted to present
rebuttal argument at the second stage of the hearing (People v.
Tenner, 157 Ill. 2d 341, 382 (1993); People v. Page, 155 Ill. 2d
232, 282-83 (1993); People v. Ramirez, 98 Ill. 2d 439, 468-69
(1983); People v. Williams, 97 Ill. 2d 252, 302-03 (1983)).
Finally, the court has found that the death penalty statute
provides sufficient information gathering procedures to insure
adequate appellate review of death sentences. People v. King, 109
Ill. 2d 514, 550-51 (1986); People v. Albanese, 104 Ill. 2d 504,
541-42 (1984).
* * *
For the reasons stated, the judgment of the circuit court
of Cook County is affirmed in part and reversed in part. The clerk
of this court is directed to enter an order setting Tuesday, March
11, 1997, as the date on which the sentence of death entered in the
circuit court of Cook County is to be carried out. The defendant
shall be executed in the manner provided by law. 725 ILCS 5/119--5
(West 1994). The clerk of this court shall send a certified copy of
the mandate in this case to the Director of Corrections, to the
warden of Stateville Correctional Center, and to the warden of the
institution where the defendant is now confined.
Judgment affirmed in part
and reversed in part.
JUSTICE McMORROW, specially concurring:
Although I join in the majority's decision to affirm
defendant's conviction and sentence, I write separately because I
believe that the prosecutorial misconduct in the case at bar should
be strongly condemned by this court. There is no justification for
prosecutors, who are officers of the court, to conduct a campaign
of invective against a defendant, defense counsel, and witnesses
who testify on behalf of the defendant.
Most of the conduct and remarks challenged by defendant
occurred either during the closing argument at the guilt/innocence
phase of trial or during the capital sentencing proceedings. The
record indicates that during the guilt/innocence phase of trial,
one of the prosecutors made repeated suggestions in his closing
argument that defendant and his counsel were lying or not to be
believed. The prosecutor informed the jury that one of the
imperfections of the criminal justice system was that defense
"attorneys can stand up here and argue to you that those lies stand
as proof of [defendant's] innocence." The prosecutor's personal
opinion regarding the veracity of defense counsel and flaws in the
adversarial system of justice was unjustifiable, and had the
potential to improperly influence the decision of the jury.
The most egregious conduct and remarks occurred during
the capital sentencing proceedings, where one of the prosecutors at
times argued with defense witnesses, using sarcasm and name
calling. The record indicates that the prosecutor, during his
cross-examination of Dr. Savarese, screamed questions at the
witness and referred to defendant as "a jerk" and "Mr. Mentally
Retarded." The prosecutor's denigration of the defense continued
throughout his summation to the jury, during which he called Dr.
Wetzel, "Miss One Hundred and Fifty Dollars an Opinion."
Capital sentencing proceedings impose upon the jury the
serious duty of determining whether or not a defendant is eligible
for and deserving of the death penalty, the most severe and
irreversible state-sanctioned punishment available. The risk that
a prosecutor's improper remarks may inflame the jury is an
important concern for reviewing courts as well as trial courts.
In the case at bar, the trial court sustained defense
objections to some of the objectionable remarks, which the majority
concludes cured any prejudice that might otherwise have occurred.
Although a new trial is not always a necessary sanction for
improper remarks of the prosecutor, prosecutorial behavior which
repeatedly exceeds the bounds of zealous advocacy debases the
proceedings and creates an unnecessary diversion from the evidence
and the law.
It is significant that in addition to the degrading name
calling and screaming that the prosecutors in the instant case
engaged in, they also implied that the jurors would be violating
their oaths if they returned a verdict other than death. This
misstatement of the law cannot be lightly glossed over as
inadvertent or insignificant. In my opinion, merely holding that
any error was cured by the trial court's sustaining the defense
objection to the remark does not adequately dispose of the issue.
Unless the trial and reviewing courts rebuke such egregious
misconduct, there is little incentive in future cases for others to
refrain from improper jibes, sarcasm, and outright distortions of
the law. No matter how deplorable the crime in issue or how
inadequate the defense theories may be perceived by the
prosecution, the larger policies of fair trial and proper courtroom
decorum inveigh against the type of prosecutorial remarks and
conduct that occurred here. Such behavior benefits no one, not the
people of Illinois who are represented by the prosecutor, not the
victim's families, and certainly not the individuals whose sole
transgression was to give testimony on behalf of the defense.
In my opinion, the conduct described herein borders on
constituting reversible error. For these reasons, I write
separately to emphasize my strong disapproval of the prosecutorial
remarks in the instant case and to caution lawyers and judges to
vigorously guard against such unprofessional conduct.
JUSTICE FREEMAN joins in this special concurrence.
JUSTICE HARRISON, dissenting:
There is no dispute that at the time of trial and
sentencing, defendant was taking the medication Dilantin under
medical direction. For the reasons set forth in my special
concurrence in People v. Britz, No. 76618 (October 18, 1996), he
was therefore entitled to a fitness hearing under section 104--
21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104--
21(a) (West 1992)). By its express terms, the version of the
statute in effect here applies to any defendant who is taking
medication under medical direction even where, as here, the
medication is not psychotropic in nature. No principle of statutory
construction supports a contrary conclusion.
In filing this dissent today, I am departing from my
usual policy. When my colleagues and I disagree on a legal point,
such as the construction of a statute, I normally write separately
only in the first case that presents the issue. Once the court has
issued its opinion on the disputed point, I consider it to be the
law of the state, which I am thereafter obligated to apply even if
I personally disagree with it. In this case, however, stare decisis
must yield to more fundamental concerns. I simply cannot abide an
interpretation of the law that deviates as wildly from settled
principles of statutory construction as does the majority's where,
as here, a human being's life is a stake. When the government
distorts the law to justify the execution of a defendant, its moral
authority is lost and I will not be a party to it. I was elected to
this office to be a judge, not a vigilante.
The judgment of the circuit court should be reversed and
the cause should be remanded in accordance with People v. Brandon,
162 Ill. 2d 450 (1994). Accordingly, I dissent.
Document Info
Docket Number： 76490
Filed Date： 12/19/1996
Precedential Status： Precedential
Modified Date： 10/22/2015