People v. Harris ( 2007 )

Docket No. 98942.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
RICARDO HARRIS, Appellant.
Opinion filed February 1, 2007.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.
OPINION
Following a jury trial in the circuit court of Cook County, the
defendant, Ricardo Harris, was convicted of the first degree murders
of Dipak Patel and Ambalal Patel, the attempted first degree murder
and aggravated battery of Christina Chisnick, and the aggravated
battery of Helen Chisnick. At a separate sentencing hearing, the same
jury found defendant eligible for the death penalty for having
murdered two or more individuals. The jury also concluded, after
weighing the factors in aggravation and mitigation, that death was the
appropriate sentence. Defendant was sentenced to death for the
murders of Dipak and Amalal Patel and to consecutive 30-years terms
of imprisonment for the attempted murder of Christina Chisnick and
the aggravated battery of Helen Chisnick. Defendant’s death sentence
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 defendant’s convictions and sentences.
Background
Evidence at trial established the following. On May 13, 1999, at
approximately 7:25 p.m., the Oak Lawn police department received
a report of a shooting at the Extra Value liquor store on Cicero
Avenue in Oak Lawn, Illinois. A dispatch was sent out and police
officers proceeded to the store. Once inside, the officers discovered
that four persons had been shot. Dipak Patel, the store manager, was
found lying on the floor, bleeding and struggling to get up. He had
been shot once in the back. Christina Chisnick, a customer in the store
at the time of the shooting, was found lying on her back in a store
aisle. She had been shot twice, once in the abdomen and once in the
groin. Christina’s sister, Helen Chisnick, was kneeling over Christina,
applying pressure to her wounds. Helen had been shot once in the
abdomen. In the rear of the store, the officers discovered another
employee, Ambalal Patel, seated on the floor and leaning against some
shelves. He had been shot once in the chest.
The police officers called for medical help and secured the store.
Paramedics arrived and transported the four victims of the shootings
to the hospital. Both Dipak and Ambalal died from their wounds.
Christina and Helen survived.
At trial, Christina testified about the events that took place on
May 13, 1999. Christina stated that she and her sister drove to the
Extra Value liquor store at approximately 7:15 p.m. When they
arrived, no other cars were in the store’s parking lot. As the two
sisters entered the store, Dipak Patel was standing behind the front
counter, talking with Ambalal Patel. No other customers or employees
were present. The sisters looked at various items, then moved toward
the back of the store, where there was an aisle of refrigerated coolers
containing cases of beer. Ambalal approached the women and spoke
with them for a few moments. Christina then opened the door to one
of the coolers, removed a case of beer, and turned.
Christina testified that, as she turned, she saw an African-
American man, whom she identified in court as defendant, and Dipak
walking toward the back of the store at the end of the cooler aisle.
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Defendant was about a foot and a half behind Dipak and was holding
a gun. Christina stated that, as the two men were walking, defendant
shot Dipak in the back. Defendant then turned and fired once in the
direction of Ambalal, who was standing behind Christina. Defendant
then shot Christina twice. Christina testified that the force of the
second shot spun her around. As she turned, she saw Ambalal,
halfway into a shelf, his chest covered with blood. Christina then fell
to the ground.
Helen Chisnick offered testimony similar to Christina’s. Helen
stated that, at the time of the shootings, she was standing in the cooler
aisle, facing Christina. As Christina removed the beer from the cooler,
Helen heard a gunshot, and immediately saw that Ambalal had been
shot. Helen looked at Christina and watched as she was shot and fell
to the floor. Helen then turned to look in the direction from which the
shots were fired and saw a man, whom she identified in court as
defendant, standing about five feet from her. Helen also saw Dipak
lying on the floor and knew that he had been shot. Helen stated that
she looked defendant “right in the face,” looked at him “up and
down,” and saw that he was holding a gun in his right hand. Helen
testified that she looked at defendant for approximately five seconds.
Defendant then shot her. Helen testified that she threw her purse
across the aisle and fell to the floor, where she pretended to be dead.
Helen stated that, after a few seconds, she saw her sister’s leg
move. Helen whispered to Christina to stop moving because the
gunman might still be in the store. A few more seconds passed, and
Helen and Christina both stood up. Helen stated that she walked
toward the front of the store, saw a young blond woman at the front
counter, and told her to phone the police. Helen then returned to her
sister. Christina said she was growing weak and lay down on the floor.
Helen knelt over Christina, applied pressure to her wounds, and began
praying. Police and paramedics arrived and both women were taken
to the hospital.
Both Christina and Helen testified that they did not see defendant
enter or leave the store. The sisters agreed that defendant shot Dipak
first, followed by Ambalal, then Christina and, finally, Helen. Both
women also testified that defendant never spoke during the shootings.
As Christina stated, “He just came in and shot us.”
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Oak Lawn Police Detective Michael Murray briefly interviewed
Helen in the hospital emergency room during the evening of May 13,
1999. Both Helen and Murray testified that Helen was being treated
for her injuries at the time, that medical personnel were moving
around her, and that Murray stood off to one side. Helen testified she
told Murray that the person who shot her was a black male, 5 feet 11
inches tall, that he weighed 170 pounds, and that he was wearing
black pants, black shoes, and a black, long-sleeved shirt or jacket. In
his testimony, Murray recalled Helen describing the offender as 5 feet
7 inches tall.
Murray interviewed Helen in the hospital at greater length the next
day and, with Helen’s assistance, prepared a composite sketch of the
gunman. Both Helen and Murray agreed that, during this second
interview on May 14, 1999, Helen described the gunman as 5 feet 11
inches, 170 pounds, and between the ages of 35 and 40. At the time
of trial, approximately five years after the murders, defendant was 6
feet 0 inches tall and weighed 185 pounds.
On May 15, 1999, Murray and a second detective visited Helen in
her home and showed her a photo array containing six pictures,
including one of defendant. Helen selected defendant’s photograph
because, as she stated, “that is who shot me.” On cross-examination,
Helen acknowledged that she told the officers she was 70% certain
about her selection. However, she explained her answer by stating that
she wanted to see the man in the photograph in person and that “it
wasn’t a picture that shot me. It was a real person that shot me.” After
Helen selected defendant’s photograph from the photo array, she
signed and dated it.
On August 7, 1999, Helen viewed a lineup at the Oak Lawn police
station. Helen acknowledged that, by this time, she had twice seen
television programs about the shooting at the liquor store. She stated,
however, that the television programs did not influence her viewing of
the lineup. At the lineup, the police officers told Helen that after she
looked at each person she could ask to see anyone a second time. The
men stood in a line and approached the viewing window individually.
Helen testified that, after viewing all the men, she knew that the first
person in the lineup, defendant, was the one who had shot her. She
stated that she asked to have defendant step forward a second time so
that he would know she had identified him. Then, according to an
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officer present during the lineup, Helen said, “I think it’s number one.”
However, Helen testified that she told the police officers “it is number
one.” She also told the jury that she “picked him because that’s who
shot me” and that she was “positive” defendant was the man who shot
her.
Christina also testified regarding interviews she had with the
police. Christina stated that she briefly spoke to a uniformed officer in
the emergency room on May 13, 1999, before undergoing surgery.
Christina testified that she told the officer that the gunman was 5 feet
9 inches and in his mid-thirties. She also stated that he wore a black
shirt, black pants, and black shoes, and had short black hair in a
natural, afro hairstyle.
On May 23, 1999, Detective Murray visited Christina while she
was still recovering in the hospital. Murray showed Christina an array
of six photographs, including pictures of both defendant and his
brother. Christina testified that, because of her medical condition, she
had not seen any other pictures or media coverage related to the case
before she was shown the photo array. Christina selected defendant’s
photograph. In his testimony, Detective Murray recalled Christina
telling him during the interview on May 23 that she did not get a good
look at the gunman’s face but that she recognized the shape of
defendant’s head and his hairstyle. However, in her testimony,
Christina denied saying that she did not get a good look at the
gunman’s face. Christiana agreed that she had commented on the
shape of the gunman’s head and hairstyle, but stated that she also
recognized defendant’s “big round eyes,” “close ears” and complexion
when she selected his photograph.
Like Helen, Christina viewed a lineup at the Oak Lawn police
station on August 7, 1999. Prior to the lineup, she twice saw the
photograph of defendant she had selected from the photo array on
television programs. During the lineup, Christina identified defendant
as the man who shot her. Also like Helen, Christina stated that she
was certain of her identification of defendant as the gunman. Christina
told the jury that defendant was standing directly in front of her when
he began shooting and that the sight of him was “branded in [her]
memory.”
Dr. Otto MacLin, an experimental psychologist, offered expert
opinion concerning the reliability of eyewitness identifications. MacLin
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discussed a phenomenon known as the “weapons focus effect,” in
which a victim may focus his attention on the weapon used to commit
the crime rather than the offender’s face. According to MacLin, a
body of academic literature indicates that when a weapon is involved
in a crime there “is a detriment or diminished capacity to recognize”
the offender. MacLin acknowledged, however, that it is difficult to
confirm this effect through experimentation because of the
impossibility of creating a laboratory experiment which mirrors an
actual crime involving a weapon. MacLin also acknowledged that
some people do make accurate identifications despite the presence of
a weapon.
MacLin also described the “cross-race effect,” a phenomenon in
which a person may have difficulty identifying a person of another
race. MacLin acknowledged, however, that some cross-racial
identifications are accurate.
Jeffrey Parise, a firearms expert, testified for the State. Parise
stated that he examined an unfired cartridge, a spent bullet, and five
cartridge casings recovered from the floor of the Extra Value liquor
store. He also examined a bullet that had been removed from Dipak
during his autopsy, and a bullet that had been removed from Christina
during surgery. Parise testified that the three bullets he examined were
.40-caliber, jacketed, Hydrashock hollow-point bullets, a distinctive
type of ammunition that is manufactured only by the Federal
Company. He also stated that the bullet recovered from Ambalal’s
body and the bullet found on the liquor store floor were fired from
“one gun to the exclusion of all others.” Parise further testified that
the cartridge cases recovered from the store could have been fired
from the same gun. In addition, each cartridge had an elliptical
impression left on it from the firing pin. According to Parise, only the
Glock Company manufactures a .40-caliber handgun that leaves the
type of impression found on the cartridge cases recovered from the
liquor store.
Pauline Zelko, a deputy sheriff from Genesee County, Michigan,
testified on behalf of the State. Zelko stated that defendant was in her
custody on May 7, 1999, six days before the shooting. On that date,
defendant took Zelko’s firearm and escaped. Zelko’s firearm was a
.40-caliber, semiautomatic Glock handgun. The gun was loaded with
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13 rounds of .40-caliber, jacketed, Federal Hydrashock hollow-point
ammunition.
Frank Sarelli also testified for the State. In May 1999, Sarelli was
living in the Aloha Motel on Cicero Avenue, five blocks from the
Extra Value liquor store. Sarelli stated that he met defendant at the
Aloha Motel on May 11. On May 12, Sarelli sold crack cocaine to
defendant. Defendant then told Sarelli that he wanted to sell a gun.
According to Sarelli, defendant showed him a black, .40-caliber,
Glock handgun and said he wanted $200 for it. Sarelli called various
drug dealers but was unable to sell the gun for him.
Sarelli testified that, on Thursday, May 13, 1999, defendant came
to his room at approximately 11 a.m, asking for more cocaine. At that
time, defendant told Sarelli that his brother and cousin were coming
into town from Michigan, that they might want the gun, and that he
was no longer interested in selling it. The shootings at the Extra Value
liquor store occurred during the evening of May 13. Sarelli stated that
he did not see defendant on May 14.
On May 15, 1999, Sarelli phoned the Oak Lawn police department
and told them he had information about the shootings. Sarelli then
went to the police station and told them about defendant and the gun
he had been shown. Based on this information, and information
obtained at the Aloha Motel, the Oak Lawn police department was
able to obtain a picture of defendant from authorities in Michigan.
This picture was subsequently placed in the photo arrays shown to
Helen and Christina Chisnick.
During his cross-examination, Sarelli acknowledged that he was
a drug and alcohol abuser with prior criminal convictions. He also
acknowledged that he expected to receive a reward of $2,500 if
defendant was convicted. Sarelli stated that the offer of the award was
made four years after the murders, in 2003, by Oak Lawn police
officers. At that time, Sarelli was in prison in Danville, Illinois, and
was scheduled to be transferred to Stateville prison so that he could
testify in the instant case. Sarelli did not like conditions in Stateville
and was angry about the transfer. Sarelli told the Oak Lawn police
officers that he would not cooperate and that they were wasting their
time. At that point, the officers mentioned the reward.
On redirect, Sarelli testified that he did not know about any
reward when he first phoned the police on May 15, 1999. He stated
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that he came forward with information about defendant because he
knew Dipak and Ambalal, had been in their store many times, and was
upset by their deaths. Sarelli also testified that the State’s Attorney
had not offered him anything for his testimony and that his testimony
was not being given solely to collect the reward money.
During the redirect examination of Sarelli, the State also
introduced a tape recording of the phone call Sarelli made to the Oak
Lawn police on May 15, 1999. In that recording, Sarelli told the
police “somebody in–in the area over there, a black guy, tried to sell
me a 40 caliber semiautomatic pistol. It was a Glock. A Glock 40
caliber semiautomatic pistol, 13 shot clip.” As the State later argued
to the jury, the tape recording was significant in establishing Sarelli’s
credibility because ballistics tests had not yet been conducted on May
15 and, at the time Sarelli called, the police did not yet know the make
of the weapon used in the shootings. Thus, the tape recording showed
that Sarelli was the first person to report to the police that a Glock
handgun had been used to commit the murders and that the gun had
a 13-shot clip.
Following closing arguments, the jury returned guilty verdicts
against defendant for the first degree murders of Dipak Patel and
Ambalal Patel (720 ILCS 5/9–1(a)(1) (West 2004)); the attempted
first degree murder (720 ILCS 5/8–4, 9–1 (West 2004)) and
aggravated battery (720 ILCS 5/12–4.2(a)(1) (West 2004)) of
Christina Chisnick; and the aggravated battery (720 ILCS
5/12–4.2(a)(1) (West 2004)) of Helen Chisnick.
At the eligibility phase of the death penalty hearing, the State
introduced defendant’s birth certificate and certified copies of
conviction for the first degree murders of Dipak and Ambalal Patel.
The jury found defendant eligible for the death penalty for having
murdered two or more individuals. 720 ILCS 5/9–1(b)(3) (West
2004).
At the aggravation-mitigation phase of the death penalty hearing,
the State introduced further details regarding defendant’s escape from
Deputy Sheriff Pauline Zelko in Michigan. The escape occurred after
Zelko transported defendant from the county jail to a doctor’s office
in Flint, Michigan. While Zelko was replacing defendant’s shackles,
defendant pushed Zelko’s head into his groin, leaned over her back,
and grabbed the deputy’s gun. Defendant turned the gun on a doctor
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and started to flee. He then returned to Zelko, put the gun to her head
and said, “Bitch, give me the keys to the car.” Zelko gave defendant
the keys. Defendant then fled with Zelko’s gun and car.
Patricia Lazzio, a former Genesee County, Michigan, prosecutor,
described the charges that were pending against defendant at the time
he escaped from Zelko. In separate cases, defendant was facing three
counts of armed robbery, a “felony firearm” count and a “felon in
possession” count. He was also charged with resisting and obstructing
a police officer. Lazzio stated that, because of his record, the State of
Michigan had refused to plea bargain with defendant. In addition, all
pending charges against defendant had been consolidated and a trial
date had been set for May 19, 1999. Lazzio also testified that the
State of Michigan was seeking a life sentence for defendant on the
ground that he was an habitual offender and that defendant had been
informed of this fact.
Lazzio stated that one of the incidents for which defendant was
facing charges was the robbery of a convenience store in Flint,
Michigan, on October 7, 1998. In this incident, the robber entered the
store, reached across the counter and grabbed the store clerk’s clothes
around his neck. He then held a knife with a six- to seven-inch blade
to the clerk’s throat and demanded money. The clerk identified
defendant as the robber from a photo lineup and defendant was
subsequently arrested. The armed robbery was also recorded on a
video surveillance tape, which was played for the jury during the
sentencing hearing in the case at bar.
Lazzio stated that defendant was also facing charges for a second
armed robbery that occurred in Flint, Michigan, in the early morning
hours of October 14, 1998. In this incident, the robber entered a
convenience store and pulled out a .357 Magnum from his waistband.
He pointed the gun at a clerk’s head, cocked it, and said, “Give me the
cheese.” He then pointed the gun at a customer and indicated that he
was ready to shoot him, too. The robber took the money from the
store’s register and left. Following a chase on foot, police officers
apprehended defendant in a nearby area. They also recovered a
loaded, long-barrel, .357 Magnum that defendant had tried to discard
during the chase. After defendant was taken to the police station, he
admitted to police officers that he had robbed the store. Then, while
in a holding area, defendant struck a police officer in the head,
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wrestled with him on the ground, and tried to grab the officer’s gun.
With the help of additional officers, defendant was eventually
subdued.
Evidence of other crimes defendant committed in Michigan was
also introduced. Defendant was convicted of breaking and entering
into an occupied dwelling in 1986 and was sentenced to a prison term
of 5 to 15 years. In 1988, defendant was seen in a stolen car and fled
when a police officer approached the vehicle. Defendant was
subsequently convicted of unlawfully driving away an automobile and
received a prison term of two to five years. In 1989, defendant was
convicted of attempted felony receiving and concealing of stolen
property. He received a sentence of one to two years’ imprisonment.
Defendant was incarcerated in Michigan in August of 1989 and
paroled in June of 1993. His parole was revoked, and he was
reincarcerated, in October of 1994. He was released again in August
of 1996, and his parole revoked a second time, in March of 1997.
Defendant was paroled a third time in February of 1998. By March of
1999, he had been charged with armed robbery and the other crimes
for which he was facing trial on May 19, 1999.
Evidence was also introduced at defendant’s sentencing hearing
regarding an armed robbery that occurred at a convenience store in
Charlotte, North Carolina, on July 21, 1999. In this incident, the
robber reached over the counter, grabbed the clerk and threatened to
shoot and kill him if he did not open the cash register drawer. The
clerk opened the drawer and the robber took the money. This incident
was also recorded on a video surveillance tape that was played for the
sentencing jury in the case at bar. After the videotape was recovered
by the police, it was released to the media and broadcast on a
television program called “Crime Stoppers.” Defendant was arrested
by the FBI in Charlotte on August 4. The store clerk subsequently
identified defendant as the robber from a photo array.
Dipak Patel’s son, Chirayu Patel, concluded the State’s case in
aggravation by reading a victim impact statement to the jury.
No evidence was offered by defendant in mitigation. Defendant
refused to attend his sentencing hearing, did not cooperate with trial
counsel in the preparation of mitigating evidence, and declined to
testify on his own behalf.
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Following argument by the State and defense, the jury concluded
that death was the appropriate sentence for the murders of Dipak and
Ambalal Patel. The judge subsequently sentenced defendant to death
for the first degree murders and imposed consecutive 30-year terms
for the remaining convictions. This appeal followed.
Analysis
Defendant raises 10 issues on appeal, relating to both his trial and
sentencing. We address these issues in turn.
Defense Counsel’s Use of the Word “Jail”
Prior to trial, the State filed a motion in limine seeking to admit
evidence that defendant had escaped from custody in Michigan six
days before the shootings at the Extra Value liquor store and had
taken Deputy Sheriff Zelko’s .40-caliber Glock handgun. In its ruling
on this motion, the circuit court stated that the evidence tended “to aid
in the identification of the perpetrator of the subject crimes in that it
shows that the Defendant had access to or possession of a handgun,
or the .40 caliber Glock he’s alleged to have stolen from the Sheriff’s
Deputy, which is similar to the handgun used in the liquor store
crimes.” The circuit court conducted a balancing test and concluded
that the probative value of the evidence substantially outweighed its
potential prejudicial effect. Accordingly, the court granted the State’s
motion to admit the evidence.
At the same time, however, the circuit court also ruled that the
evidence of defendant’s escape “must not become the focal point of
the trial.” To that end, the court ordered that the State would “be
limited to establishing that the Defendant was in the custody of the
Sheriff Deputy, overpowered the Deputy, and fled from the Deputy
Sheriff’s custody with her gun.” The court further ordered that the
State would not be allowed to present details of the escape from
custody that were irrelevant to the identification issue, including “the
fact that the defendant was a jail inmate at the time of this other
offense.”
Thereafter, during the course of defense counsel’s opening
statement to the jury, counsel stated that “a person by the name of
Ricardo Harris had escaped from a jail in Michigan and he had
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escaped with a gun.” In the next sentence, counsel again stated,
“Ricardo Harris did escape from a jail in Michigan.” Later, during the
cross-examination of Deputy Sheriff Zelko, defense counsel elicited
testimony that defendant was wearing “jail-jump greens” at the time
of his escape. The court sustained an objection by the State to the use
of the word “jail-jumps” but did not inform the jury that the objection
was sustained.
Before this court, defendant argues that defense counsel’s use of
the word “jail” during his opening statement, and the elicitation of the
word “jail-jumps” from a witness, amount to ineffective assistance of
counsel. Defendant contends that defense counsel’s errors revealed
that defendant “had at least allegedly committed prior bad acts and
that he had been arrested as a result.” According to defendant,
counsel’s errors were prejudicial and require reversal of his
convictions.
Claims of ineffective assistance of counsel are generally evaluated
under the two-part test set forth in Strickland v. Washington, 466
U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984)
(adopted by this court in People v. Albanese, 104 Ill. 2d 504, 525-26
(1984)). To prevail under Strickland, a defendant must show that his
attorney’s assistance was both deficient and prejudicial. More
precisely, a defendant must show that his attorney’s assistance was
objectively unreasonable under prevailing professional norms, and that
there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 687, 694, 80 L.
Ed. 2d. at 693, 698, 104 S. Ct. at 2064, 2068. The failure to satisfy
either prong of the Strickland test will preclude a finding of ineffective
assistance of counsel. People v. Shaw, 186 Ill. 2d 301, 332 (1998).
In this case, defendant has not established prejudice. As noted, in
its ruling on the motion in limine, the circuit court held that the State
could introduce evidence that defendant escaped from the custody of
Deputy Sheriff Zelko. Defendant does not contest this ruling. Thus,
defendant’s contention regarding prejudice is quite narrow: he
contends he was prejudiced by the statements that he escaped from
custody in jail rather than from the custody of a deputy sheriff. This
is a de minimis distinction. The jury knew that defendant was in
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custody and could infer, logically, that he was being held in custody
somewhere. Further, on the three occasions when the word “jail” was
mentioned it was not stressed or emphasized in any way. Finally, and
most important, the three mentions of the word “jail” occurred within
the context of a lengthy trial in which the jury heard extensive
ballistics evidence as well as the compelling testimony of two
eyewitnesses who repeatedly and unequivocally identified defendant
as the gunman. Given these facts, we conclude there is no reasonable
probability that, absent the appearance of the word “jail” and “jail-
jumps,” the result of defendant’s trial would have been different.
Accordingly, defendant’s claim of ineffective assistance of counsel
fails.
Defendant’s Flight to and Arrest in North Carolina and His Use of
an Assumed Name
Before trial, the State moved in limine to introduce evidence that
defendant fled to Charlotte, North Carolina, following the shootings
at the Extra Value liquor store and that, at the time of his arrest there
in August of 1999, he possessed identification bearing a false name.
During the hearing on the State’s motion, the State argued that both
defendant’s flight and his use of an assumed name were relevant and
admissible because they showed defendant’s consciousness of guilt for
the crimes committed in Illinois. The State asked the circuit court to
“allow the People to make [this] argument to the ultimate trier of
fact.”
In the alternative, the State contended that, if the circuit court did
“not allow the People to make this argument to the trier of fact, that
being flight and consciousness of guilt,” then evidence that defendant
was apprehended in North Carolina and was carrying false
identification was nevertheless admissible to show the circumstances
of his arrest. In particular, citing to People v. Hayes, 139 Ill. 2d 89,
130-31 (1990), the State maintained that evidence of defendant’s
arrest in North Carolina was admissible to explain why his
apprehension was delayed until three months after the crimes
occurred.
Following the hearing on the State’s motion, the circuit court
issued an order in which it reserved ruling on whether the State would
be allowed to argue that defendant’s flight to North Carolina showed
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consciousness of guilt. In its order, the circuit court set forth a
“framework for a future determination of the issue,” explaining:
“The inference of guilt which may be drawn from flight
depends upon the knowledge of the suspect that the offense
has been committed and that he is or may be suspected. While
evidence that the Defendant was aware that he was a suspect
is essential to prove flight, actual knowledge of his possible
arrest is not necessary to render sufficient evidence admissible
where there is evidence from which such fact may be
inferred.”
The circuit court invited the State “to submit a pre-trial proffer of the
evidence that it would advance at trial that would show that the
Defendant had knowledge that the charged liquor store crimes had
been committed and that he was aware or [sic] may have been
suspected.” Thereafter, however, the State expressly declined to make
such a proffer and no further order was entered by the court on this
issue.
With respect to defendant’s possession of false identification at the
time of his arrest, the circuit court granted the State’s motion in
limine. The circuit court stated:
“Where the Defendant uses a different name from his own,
questioning regarding the defendant’s true identity is relevant
in that it serves to clarify the Defendant’s true identity.
Identification is clearly an issue in this case and evidence of
the Defendant’s use of an assumed name is equally clearly
relevant and material to the issue of the identity of the
offender. Also, evidence of the use of a false name after the
commission of a crime is commonly accepted as relevant and
admissible as to the issue of consciousness of guilt.”
Subsequently, at trial, the State introduced the testimony of FBI
Agent Raymond Duda. Duda briefly testified, without cross-
examination, that he arrested defendant inside an apartment in
Charlotte, North Carolina, on August 4, 1999. Duda stated that, at the
time of his arrest, defendant possessed a social security card and a
North Carolina state identification card bearing defendant’s
photograph. Both cards were in the name of Joaquin Alexander
McCall.
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In addition to Duda’s testimony, the State also briefly referred to
defendant’s arrest in North Carolina and his use of an assumed name
during its opening statement to the jury. And, during closing
argument, the prosecutor twice stated that defendant was using the
name Joaquin McCall at the time of his arrest.
Defendant now contends that the circuit court erred in admitting
evidence of defendant’s flight to and arrest in North Carolina and his
use of an assumed name. Defendant casts his argument solely in terms
of whether it was proper for the State to use this evidence to establish
his consciousness of guilt for the crimes at issue in this case.
Defendant acknowledges, as a general matter, that both evidence of
flight and the use of an assumed name may be admissible as proof of
consciousness of guilt. See, e.g., People v. Lewis, 165 Ill. 2d 305, 349
(1995); 2 K. Broun, McCormick on Evidence §263, at 217 (6th ed.
2006); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence
§801.3, at 632 (8th ed. 2004). Defendant maintains, however, that to
establish consciousness of guilt from flight and the use of an assumed
name, the State must show that the defendant knew he was being
sought in connection with the charged crime. Further, while defendant
concedes that there was “massive” nationwide publicity regarding the
shootings at issue in this case, he maintains that the State’s own
evidence establishes that defendant left immediately after the crimes
at the liquor store occurred and that he “was no longer in Oak Lawn
when the publicity barrage began.” According to defendant, “[n]ot
only did the state fail to establish that [defendant] knew he was a
suspect, it established that he left before he could have known that the
police suspected him.” Thus, defendant contends that “[t]he state
failed to lay the foundation necessary to admit evidence that
[defendant] had fled to and was arrested in North Carolina or that he
was using an assumed name, and it was improper to argue that was
evidence of his consciousness of guilt.”
The State, in response, correctly observes that this argument is
procedurally defaulted because defendant failed to include it in his
posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988).
Nevertheless, pursuant to Supreme Court Rule 615(a) (134 Ill 2d R.
615(a)), “[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the trial
court.” Before invoking the plain error exception, however, “it is
-15-
appropriate to consider whether error occurred at all.” People v.
Wade, 131 Ill. 2d 370, 376 (1989). The circuit court errs in admitting
evidence only if it abuses its discretion in doing so. People v.
Robinson, 217 Ill. 2d 43, 62 (2005).
With respect to the issue of flight, we note that, contrary to
defendant’s assertions, the State did not attempt to establish his
consciousness of guilt based on the fact he fled to North Carolina.
Although the State argued in pretrial proceedings that defendant’s
flight showed consciousness of guilt, the argument was not pursued
at trial. At no time did the State suggest to the jury that defendant fled
to North Carolina because he was conscious of having committed the
crimes at issue in this case.
Through the testimony of Agent Duda the State did introduce
evidence that defendant was arrested in North Carolina. However, the
State’s only noteworthy mention of defendant’s arrest came during its
opening statement to the jury, where the prosecutor suggested there
was a delay in apprehending defendant because he was in North
Carolina:
“The Oak Lawn police were now looking for Ricardo Harris;
but ladies and gentlemen, their search didn’t really turn up
much–not until August 4, 1999, when the defendant was
captured and arrested by the FBI. He was found in North
Carolina. He was found living under an assumed name. He
was found in possession of identification under that assumed
name, but with his photograph on it.”
Evidence that defendant was apprehended in North Carolina was
clearly admissible as a circumstance of his arrest. People v. Hayes,
139 Ill. 2d 89, 130-31 (1990). We conclude, therefore, that the circuit
court did not abuse its discretion in admitting that evidence.
Consequently, we also conclude there was no plain error. See People
v. Keene, 169 Ill. 2d 1, 17 (1995) (all plain errors are reversible
errors).
With respect to the false identification discovered with defendant
at the time of his arrest, we note that the circuit court offered two
rationales for its admission: the evidence was relevant to establishing
defendant’s identity and it was relevant to establishing his
consciousness of guilt. In two statements made during closing
argument, the State discussed defendant’s use of an assumed name,
-16-
but solely in terms of clarifying defendant’s identity. The first
statement came while the prosecutor was recounting Agent Duda’s
description of defendant and emphasizing the accuracy of the
composite sketch of the gunman prepared by Helen Chisnick:
“What did [Duda] say about the defendant’s weight? What did
he say about him? Oh, I know, he said that he had the
identifications, evidently he’s Joaquin McCall. That’s right,
he’s Joaquin McCall. But we’ll call him Ricardo Harris today,
okay, folks. But what did he say about him besides that he was
Joaquin McCall on that day? He said that he was six foot, a
hundred and eighty-five pounds. Boy, everything Helen had to
say about him is actually right on. The composite [sketch] was
right on, the weight and the height, everything is right on
about the defendant.”
During rebuttal, the prosecutor again mentioned the assumed
name within the context of discussing Helen’s identification of
defendant:
“And what about that information [which Helen provided to
the police]? Special Agent Duda told you that when Ricardo
Harris was taken into custody in North Carolina, he was six
foot tall, one inch different [than Helen’s description], hundred
and eighty-five pounds, fifteen pounds heavier [than Helen’s
description], and going under the name of Joaquin McCall.
You can read it. It’s got the information on there. Alexander
McCall. And issued June 1st, 1999. You will be able to see
that.”
The State discussed defendant’s assumed name only to clarify that,
although the identification found on defendant bore the name Joaquin
Alexander McCall, it was, in fact, defendant who was arrested, and
further, that it was defendant’s physical description which was on the
North Carolina state identification card. Evidence of defendant’s use
of an assumed name served to clarify defendant’s true identity. As
such, it was properly admitted. See, e.g., People v. Berlin, 75 Ill. 2d
266 (1979).
In his briefs to this court, defendant does not address the circuit
court’s ruling that the false identification was relevant to establishing
his true identity but, instead, asserts only that the State introduced his
use of an assumed name to prove his consciousness of guilt. Again,
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however, the State did not make that argument to the jury. Further,
even if the admissibility of the false identification is viewed solely in
terms of establishing consciousness of guilt, and even if it is
considered under the standards for admission suggested by defendant,
there was no error.
In a supplemental pro se response to the State’s motion in limine,
defendant admitted that he knew he was a suspect in the shootings
“days” after they occurred. The pro se response states:
“[D]efendant did not become a suspect in the crime until May
15th which is when police learned of his identity. The
defendant was totally unaware of an armed robbery having
taken place, or of him having become a suspect until days
later.”
During the hearing on the State’s motion in limine, defendant again
told the court, “I didn’t know anything about any crime here in Illinois
until subsequently after leaving this State. Which was a couple days
later.”
Defendant expressly conceded to the circuit court that, at the time
the State established he was using an assumed name, i.e., when he was
arrested in August of 1999, he knew he was a suspect in the crimes at
issue in this case. Given these facts, we conclude that the circuit court
did not err in admitting evidence of defendant’s use of false
identification, either as a matter of establishing defendant’s identity or
his consciousness of guilt. Consequently, we find no plain error as
well.
Evidence That Defendant Purchased and Used Drugs
Before trial, defendant moved in limine to exclude any testimony
by Frank Sarelli that defendant purchased or used drugs with Sarelli
during the time defendant was staying at the Aloha Motel. The circuit
court denied the motion.
Subsequently, at trial, Sarelli testified regarding drug sales made
to defendant. Sarelli stated that when he first met defendant at the
Aloha Motel on May 11, 1999, defendant asked Sarelli where he
could buy drugs. Sarelli went to defendant’s room and allowed
defendant to try some of his crack cocaine. Defendant then asked
Sarelli if he would buy him some crack cocaine. Sarelli did so. Sarelli
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also testified that he bought crack cocaine twice more for defendant
on the following day, May 12. According to Sarelli, after the second
drug purchase on May 12, defendant showed him a Glock, .40-caliber
handgun and asked whether Sarelli could sell it for him.
Before this court, defendant states that the circuit court admitted
Sarelli’s testimony regarding the drug sales and drug usage because
the testimony placed defendant five blocks from the Extra Value
liquor store around the time of the shootings. Defendant contends,
however, that it is improper for a witness to discuss other crimes to
establish a defendant’s proximity in time and place to the crime scene.
Defendant further claims that Sarelli could have testified that he had
seen defendant at the Aloha Motel without mentioning the drug sales
or drug usage, and “no violence would have been done to his
testimony.” Accordingly, defendant maintains that Sarelli’s testimony
regarding the drug sales and drug usage was irrelevant and prejudicial
and should have been excluded. We disagree.
“[E]vidence of other crimes committed by defendant may be
admitted if relevant to establish any material question other than the
propensity of the defendant to commit a crime.” People v. Stewart,
105 Ill. 2d 22, 62 (1984). “When such evidence is offered, it is
incumbent upon the trial judge to weigh the relevance of the evidence
to establish the purpose for which it is offered against the prejudicial
effect the introduction of such evidence may have upon the
defendant.” Stewart, 105 Ill. 2d at 62.
Contrary to defendant’s assertions, Sarelli’s testimony regarding
drug sales and drug usage was not admitted solely because of its
relevance to establishing defendant’s proximity to the crime scene.
During a brief hearing on defendant’s motion in limine, the State
contended that the drug transactions between defendant and Sarelli
were relevant and admissible because they showed “the credibility of
the relationship between Mr. Sarelli and the defendant.” The State
explained:
“[I]t is our position that it is because of that relationship,
because of the relationship that Mr. Sarelli had with the
defendant in that he would buy the drugs for the defendant
and do drugs with the defendant, that the defendant felt
comfortable enough to show Mr. Sarelli the gun that he was
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in possession of and felt comfortable enough to ask Mr. Sarelli
to try and sell that gun.”
Immediately following the State’s argument, the circuit court issued
a ruling on defendant’s motion in which the court agreed with the
State:
“The Court finds that the witness’–that is, Frank Sarelli
supplying drugs to the defendant and the presence together of
the defendant and the witness for the negotiation of the
purchase of drugs and the usage of the drugs puts into context
the relationship and the extent and nature of the time the two
spent together and speaks to the witness’ opportunity to
observe the defendant and clearly goes to the issue of the
defendant’s identification and presence and proximity to the
crime scene.
The Court has conducted a balancing test and finds that
the probative value from the admission of this evidence would
substantially outweigh its prejudicial effect.
Therefore, your motion in limine is denied and the
evidence may come in.” (Emphasis added.)
The jurors were more likely to believe that defendant tried to sell
Sarelli the Glock handgun if they knew the nature of the relationship
between the two and, specifically, that Sarelli had shared drugs with
defendant and had obtained drugs for him on at least three occasions.
See, e.g., People v. Cole, 29 Ill. 2d 501, 504-05 (1963) (evidence of
prior drug transactions explained and gave credence to what was
otherwise unrealistic testimony regarding a drug sale between the
defendant and an undercover officer). The circuit court did not abuse
its discretion in admitting evidence of the drug transactions on this
basis.
References to the Victims’ Families
Defendant contends that the State impermissibly elicited references
to the victims’ families during the trial testimony of three witnesses.
The first such reference occurred during the direct examination of
Helen Chisnick. At the beginning of her testimony, Helen was asked
several background questions by the prosecutor, including how old
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she was and what she did for a living. Helen was then asked what she
did on May 13, 1999, the day of the shootings. Helen replied:
“I took care of my mother. My mother was bedridden.
She’d had a stroke. So she was paralyzed on the one side of
her. So I–my routine would be I would get up in the morning.
I would have to change her, feed her breakfast, test her blood
sugar.”
The second reference that defendant contends was error took
place during the testimony of Christina Chisnick. At the beginning of
her direct examination, Christina was also asked several background
questions, including whether she was married and whether she had any
children. Helen answered that she was married and that she had a
nine-year-old son.
The third reference occurred during the testimony of Barul Patel,
Dipak Patel’s wife. Testifying primarily as a “life and death” witness
for the State, Barul stated that she opened the Extra Value liquor
store with her husband at 9 a.m., left to pick up her younger son from
school in the afternoon, and returned in the evening to find that the
shootings had taken place and that her husband had been taken to the
hospital. Like Helen and Christina, Barul was asked several
background questions at the beginning of her direct examination,
including whether she was married, whether she had any children, and
what the ages of the children were. Barul answered that she was
married to Dipak and that she had two sons who, at the time of trial
in February 2004, were 21 and 16 years old.
Citing to People v. Hope, 116 Ill. 2d 265, 274-79 (1986), and
People v. Bernette, 30 Ill. 2d 359, 371 (1964), defendant contends
that the references to family members of the victims described above
were improperly elicited by the State in an attempt to appeal to the
emotions of the jurors. He maintains that he was denied a fair trial on
this basis and, therefore, that his convictions should be reversed.
The State correctly observes that this argument is procedurally
defaulted because no objections were made to the witnesses’
testimony at trial and because defendant failed to include the issue in
his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988).
Defendant, in response, contends that the admission of the complained
of testimony amounts to plain error. In addressing defendant’s plain
-21-
error argument, we first consider “whether error occurred at all.”
People v. Wade, 131 Ill. 2d 370, 376 (1989).
“[W]here testimony in a murder case respecting the fact the
deceased has left a spouse and family is not elicited
incidentally, but is presented in such a manner as to cause the
jury to believe it is material, its admission is highly prejudicial
and constitutes reversible error unless an objection thereto is
sustained and the jury instructed to disregard such evidence.
In like manner, we have held that jury argument by the
prosecution which dwells upon the decedent’s family or seeks
to relate a defendant’s punishment to the existence of family
is inflammatory and improper.” People v. Bernette, 30 Ill. 2d
359, 371 (1964). “However, ‘[c]ommon sense tells us that
murder victims do not live in a vacuum and that, in most
cases, they leave behind family members.’ (People v. Free
(1983), 94 Ill. 2d 378, 415.) Thus, every mention of a
deceased’s family does not per se entitle the defendant to a
new trial. (People v. Bartall (1983), 98 Ill. 2d 294, 322.)”
People v. Hope, 116 Ill. 2d 265, 275-76 (1986).
In this case, several facts point to the admissibility of the three
witnesses’ testimony. First, unlike the testimony at issue in cases such
as Hope and Bernette, Helen’s and Christina’s testimony did not
involve the family members of a deceased victim. Rather, Helen and
Christina testified as surviving victims describing their own personal
backgrounds. See, e.g., People v. Wilson, 32 Ill. App. 3d 842, 847
(1975) (rejecting argument brought under Bernette, in part, because
the complained-of testimony did not involve family members of a
deceased victim). In addition, Barul’s testimony that she was married
to Dipak was necessary to establish her relationship to Dipak, and her
testimony that she had children was necessary to explain why she left
the liquor store in the afternoon. Both statements were a relevant part
of her “life and death” testimony. See, e.g., People v. Free, 94 Ill. 2d
378, 413-15 (1983); People v. Speck, 41 Ill. 2d 177, 201-02 (1968),
rev’d on other grounds, 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct.
2279 (1971). Finally, and most important, the brief testimony elicited
by the State from the three witnesses consisted solely of introductory,
background questions. The State did nothing to make it appear
material to establishing guilt or innocence. Thus, the testimony was
-22-
properly admitted. See, e.g., People v. Pasch, 152 Ill. 2d 133, 199
(1992) (rejecting challenge under Bernette, in part, because “many of
the complained-of questions consisted of merely introductory,
foundational questions pertaining to the witness’ back ground, which
was proper”); People v. Griffith, 158 Ill. 2d 476, 484-85 (1994).
Consequently, there also was no plain error.
In addition to challenging the testimony of Helen, Christina and
Barul, defendant also contends that he was denied a fair trial because
of comments the prosecutor made about the two deceased victims’
families during the opening statement to the jury. While recounting the
events that took place inside the liquor store during the shootings, the
prosecutor stated: “That bullet that struck Dipak in the back killed
him. Dipak Patel was both a father and a husband.” The prosecutor
also stated: “The defendant’s bullet struck Ambalal Patel in the chest
killing him. Ambalal Patel was also a husband and father.” A defense
objection at that point was sustained and the issue was subsequently
raised in defendant’s posttrial motion.
We agree with defendant that the prosecutor’s comments during
the opening statement were error. However, we cannot say the
comments were so improper as to warrant reversal of defendant’s
convictions. The comments were not dwelled upon by the State in any
way and no attempt was made to relate defendant’s punishment to the
existence of the victims’ family. See Bernette, 30 Ill. 2d at 371.
Further, defense counsel’s objection to the comments was sustained
and the jury was properly instructed that the arguments of counsel
were not evidence that it could consider in determining guilt or
innocence. Considered in the context of the entire trial, the comments
did not prejudice defendant. Accordingly, we conclude that the
comments do not amount to reversible error.
Excusal of Venireperson Smith for Cause
Defendant contends that the circuit court violated the principles
set forth in Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776,
88 S. Ct. 1770 (1968), when it excused prospective juror Harvey
Smith for cause. The State initially responds that this argument is
forfeited because defendant did not include any reference to Smith’s
excusal in his posttrial motion. However, the failure to preserve an
error in a posttrial motion may be excused when a timely trial
-23-
objection is made and the purported error is one that can be raised in
a postconviction petition. People Keene, 169 Ill. 2d 1, 10 (1995).
Here, defendant objected when the circuit court excused Smith after
his voir dire examination, and a Witherspoon error can be asserted in
postconviction proceedings. See 725 ILCS 5/122–1(a)(1) (West
2004) (permitting claims of “substantial denial of *** rights under the
Constitution of the United States or of the State of Illinois); People v.
Jackson, 205 Ill. 2d 247, 271-72 (2001) (addressing a Witherspoon
argument raised in a postconviction petition). Accordingly,
defendant’s procedural default is excused.
Witherspoon and its progeny hold that a defendant’s right to an
impartial jury, guaranteed by the sixth and fourteenth amendments to
the United States Constitution, prohibits the removal of a prospective
juror for cause where the prospective juror voices only general
objections to the death penalty. People v. Gilliam, 172 Ill. 2d 484,
509 (1996). A prospective juror in a capital case may, however, be
excused for cause based on his beliefs regarding the death penalty
when those beliefs would “ ‘prevent or substantially impair the
performance of his duties as a juror in accordance with the law and his
oath.’ ” (Emphasis omitted.) Wainwright v. Witt, 469 U.S. 412, 420,
83 L. Ed. 2d 841, 849, 105 S. Ct. 844, 850 (1985), quoting Adams v.
Texas, 448 U.S. 38, 45, 65 L. Ed. 2d 581, 589, 100 S. Ct. 2521, 2526
(1980). Because the circuit court is in a “ ‘superior position to gauge
the meaning of the prospective juror’s responses,’ ” the court’s
decision to remove a prospective juror for cause is entitled to great
deference on review. People v. Tenner, 157 Ill. 2d 341, 363 (1993),
quoting People v. Emerson, 122 Ill. 2d 411, 439 (1987). The remarks
of a prospective juror during the voir dire examination must be
considered “not in isolation but as a whole.” Tenner, 157 Ill. 2d at
363. In addition, each voir dire is unique and the propriety of
dismissing a juror for cause must be considered on a case-by-case
basis. People v. Williams, 161 Ill. 2d 1, 54 (1994).
In this case, Smith was questioned extensively during his voir dire
examination regarding his views on the death penalty and his ability to
fairly decide defendant’s case. At the close of his examination, the
State moved to excuse Smith for cause. The State maintained that
both Smith’s responses to questioning and his physical demeanor
during questioning demonstrated his substantial inability to follow the
-24-
law and perform his duties as a juror. The State noted, in particular,
that Smith kept “shaking his head no” throughout the examination.
The circuit court granted the State’s motion. The court stated:
“Well, the Court has been particularly mindful of this
juror’s responses in conjunction with his body conduct; his
body language, his demeanor as he sat in the chair, and the
Prosecution was correct when they said that. Even when the
juror indicated that he could possibly or at one point he even
got to the point of probably signing a verdict imposing death,
his head was shaking from side to side in a no fashion as it had
been throughout the course of this juror’s voir dire. The Court
finds that this prospective juror’s responses and demeanor
demonstrated to the Court’s satisfaction that his views on the
death penalty would prevent or substantially impair the
performance of his duties as a juror in accordance with the
Court’s instructions as to the law and his oath as a juror.
Accordingly, he’s excused for cause.”
Defendant contends that the circuit court erred in dismissing Smith
because there was “no ambiguity” in Smith’s answers during his voir
dire examination. In defendant’s view, Smith “repeatedly and
unambiguously stated that he could follow the law and impose a death
sentence.” Defendant acknowledges the circuit court’s finding that
Smith was shaking his head “no” throughout his questioning.
However, defendant contends that “[i]t simply is inappropriate to rely
upon a prospective juror’s demeanor to excuse him for cause where
he has repeatedly and unambiguously promise[d] to follow the law.”
Thus, according to defendant, the circuit court erred in dismissing
Smith for cause.
Unlike defendant, we believe there was considerable ambiguity in
Smith’s voir dire responses. Although, at times, Smith did state that
he could follow the law as instructed, there were several instances
when he stated that he could not. At the outset of Smith’s
examination, for example, the following exchange took place:
“Q. [by the court] Okay. Are your beliefs about the death
penalty such that regardless of the facts of the case and
regardless of the background of the Defendant that if the
Defendant were found guilty of first-degree murder, you
would automatically vote against imposing the death penalty?
-25-
A. It’s a possibility.
Q. Okay. Well, can you give that some thought and be a
little less equivocal. Would you be inclined to automatically
vote against the death penalty regardless of–
A. Yes.
Q. –regardless of the facts of the case and regardless of
the background of the Defendant?
A. Yes.”
Later, the following exchange took place:
“Q. [by the court] Sir, if you believe that after hearing all
of the facts, all of the aggravation, and all of the mitigation
that the death penalty was the appropriate sentence, would
you impose it?
A. If after I had heard everything; all the facts, and
everything is there, I don’t think so. This question here, man,
you know, sir, I mean, your Honor, that is something there.
***
Q. *** [A]ll we want to do is make sure that you could be
fair to both sides; keep an open mind in this case, set your
personal beliefs about the death penalty aside, and just follow
the law as I give it to you. That’s all we want to do, and my
question is very simple to you. Can you do that and in doing
that, consider all of the sentencing options and if after hearing
all of the facts, all of the aggravation, all of the mitigation, and
keep an open mind in the process, you determine that the
death penalty is the appropriate sentence, could you sign a
verdict form to that effect?
A. Your Honor, to be perfectly honest with you, I am not
100 percent sure. I am sort of split in between. I am not 100
percent sure that I could.”
Asked whether his views regarding the death penalty would
substantially impair his ability to reach a fair and impartial decision
concerning the issue of defendant’s guilt, Smith replied, “Oh, yeah.
Yeah. Yes. Yes.” When asked for further clarification, however,
Smith stated that he could, in fact, fairly decide defendant’s guilt
without regard to potential punishment.
-26-
On another occasion, when the circuit court asked Smith whether
he could set his beliefs about the death penalty aside and follow the
law as the court instructed, Smith replied, “Yes, Yes.” Subsequently,
however, he told the court that because of his religious beliefs, he was
opposed to the death penalty in most situations and that he could not
put the law before those beliefs. Smith also stated:
“A. Put my beliefs aside? I could hear it, but I could never
put my beliefs aside and say–because what I believe in I
believe in.”
Finally, at the end of Smith’s examination, the following exchange
took place:
“Q. [by the court] *** Could you look at both of those
things [the death sentence and a term of imprisonment] with
an open mind and depending on the facts choose either
option?
A. There’s a possibility that I could look at them both with
an open mind, but making a decision to choose would be
maybe kind of hard. It all depends on the facts presented.
Q. It is hard, but could you do it?
A. It all depends on the facts.
Q. Right. And if you had the facts, could you do it?
A. And if those facts was true and I believe in these facts
and knew I had the right facts; knowing it’s the right thing and
if I knew it was the right facts, then I could probably make
some type of decision.
Q. Could you sign a verdict that called for the death
penalty if you were satisfied with the facts in front of you and
that they warranted that penalty?
A. It’s a possibility. It’s a possibility. I mean I would
probably sign it, you know.
Q. Can you see yourself doing it under the rights facts and
the right case?
A. Your Honor, like I said, if it’s the facts. I have to have
the facts.
-27-
Q. I know and let’s assume that you have the facts that
you believe are sufficient to justify the death penalty, would
you sign a verdict that provided for it?
A. Possibly so, your Honor. Like I said, you know, I mean
it’s a hard decision for me. My own personal opinion. It’s a
hard decision.”
As the State pointed out after this exchange had taken place, even
when Smith assumed the existence of facts that he, himself, believed
were sufficient to impose the death penalty, Smith still declined to say
that he would sign a death penalty verdict.
It is true, as defendant argues, that at times during his voir dire
examination Smith indicated he could follow the law and perform his
duties as a juror. At other times, however, Smith’s responses clearly
demonstrated that he could not “set aside his own beliefs in deference
to the rule of law.” Williams, 161 Ill. 2d at 54, citing Lockhart v.
McCree, 476 U.S. 162, 176, 90 L. Ed. 2d 137, 149-50, 106 S. Ct.
1758, 1766 (1986). “[I]t is precisely in situations such as this, where
the cold record suggests an apparent contradiction, that we defer to
the circuit court’s discretion.” People v. Shaw, 186 Ill. 2d 301, 317
(1998), citing People v. Holman, 132 Ill. 2d 128, 148-49 (1989); see
also Wainwright, 469 U.S. at 434, 83 L. Ed. 2d at 858, 105 S. Ct. at
857.
Moreover, in making its decision whether to excuse Smith for
cause, the circuit court had to consider not only Smith’s ambiguous
responses, but also the fact that he had been shaking his head “no”
throughout the examination. “ ‘[T]he manner of the juror while
testifying is oftentimes more indicative of the real character of his
opinion than his words.’ ” Wainwright, 469 U.S. at 428 n.9, 83 L. Ed.
2d at 854 n.9, 105 S. Ct. at 854 n.9, quoting Reynolds v. United
States, 98 U.S. 145, 156-57, 25 L. Ed. 244, 247 (1879). Here, the
circuit court found that Smith’s demeanor indicated, along with his
responses, that he was unable to perform his duties. This finding must
be given deference. See, e.g., Wainwright, 469 U.S. at 426, 83 L. Ed.
2d at 853, 105 S. Ct. at 853 (“deference must be paid to the trial
judge who sees and hears the juror”).
Given the nature of both Smith’s responses to questioning and the
circuit court’s finding regarding his demeanor, we cannot say the
circuit court abused its discretion in concluding that Smith’s views
-28-
would have prevented or substantially impaired the performance of his
duties as a juror. Accordingly, we hold that the circuit court did not
err when it dismissed venireperson Smith for cause.
Jury Question Regarding the Imposition of the Death Penalty for
Two Murders
In Morgan v. Illinois, 504 U.S. 719, 119 L. Ed. 2d 492, 112 S.
Ct. 2222 (1992), the United States Supreme Court held that a capital
defendant has a right to challenge for cause a juror who would
automatically vote to impose the death penalty upon conviction. See
generally People v. Buss, 187 Ill. 2d 144, 180 (1999). Pursuant to
Morgan, the circuit court in this case stated, prior to voir dire, that it
intended to ask each prospective juror the following question:
“Are your beliefs such that regardless of the facts of the
case or the background of the defendant, that if the defendant
were found guilty of first degree murder, you would
automatically vote to impose the death penalty, and would not
consider signing a verdict which would result in a sentence of
imprisonment?”
Defense counsel objected to the circuit court’s question. Counsel
moved to have the court’s question replaced with one which asked the
prospective jurors whether they would automatically impose the death
penalty if the “defendant were found guilty of two murders.” The
circuit court denied counsel’s motion, stating that the question
proposed by the court was “consistent with the state of the law.”
Thereafter, the circuit court’s question, as set forth above, was asked
of each prospective juror.
Defendant contends that the circuit court erred when it declined
to ask his proposed question. According to defendant, the court’s
refusal to ask the prospective jurors whether they would always
impose a death sentence if the defendant was convicted of murdering
two persons denied him his right to an impartial jury. Defendant
acknowledges that this claim has been forfeited because it was not
included in his posttrial motion. Defendant maintains, however, that
the circuit court’s rejection of his proffered question constitutes plain
error. We disagree.
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The argument that defendant raises here has been rejected by this
court on several previous occasions. See People v. Buss, 187 Ill. 2d
144, 180-83 (1999); People v. Jackson, 182 Ill. 2d 30, 57-62 (1998);
People v. Brown, 172 Ill. 2d 1, 29-31 (1996); People v. Hope, 168 Ill.
2d 1, 28-31 (1995). Defendant presents no compelling reason to
depart from our holdings in these cases and we decline to do so. In
light of our prior decisions, we conclude that the circuit court did not
err when it declined to ask the prospective jurors defense counsel’s
proposed question. Accordingly, we also conclude that the circuit
court’s ruling did not constitute plain error. See Keene, 169 Ill. 2d at
17 (all plain errors are reversible errors).
Jury Instruction on Unanimity
Illinois Pattern Jury Instructions, Criminal, No. 7C.05 (4th ed.
2000) (IPI Criminal 4th), informs the sentencing jury that a unanimous
verdict is required to impose the death penalty. For a defendant who
has been convicted of multiple murders, IPI Criminal 4th No. 7C.05
provides:
“Under the law, the defendant shall be sentenced to death
if you unanimously find that there is no mitigating factor
sufficient to preclude imposition of a death sentence.
If you are unable to find unanimously that there is no
mitigating factor sufficient to preclude imposition of a death
sentence, the court will impose a sentence of natural life
imprisonment, and no person serving a sentence of natural life
imprisonment can be paroled or released, except through an
order by the Governor for executive clemency.”
Subsequent to the adoption of IPI Criminal 4th No. 7C.05, the
General Assembly amended the first degree murder statute. See Pub.
Act 93–605, §10, eff. November 19, 2003, amending 720 ILCS
5/9–1(g). The murder statute, which formerly stated that a death
sentence shall be imposed if the jury finds “no mitigating factor
sufficient to preclude imposition,” now states, in pertinent part:
“(g) Procedure–Jury
*** If the jury determines unanimously, after weighing the
factors in aggravation and mitigation, that death is the
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appropriate sentence, the court shall sentence the defendant
to death. ***
If after weighing the factors in aggravation and mitigation,
one or more jurors determines that death is not the
appropriate sentence, the court shall sentence the defendant
to a term of imprisonment under Chapter V of the Unified
Code of Corrections.” (Emphases added.) 720 ILCS 5/9–1(g)
(West 2004).
Recognizing this change in the statute, the circuit court in the case
at bar modified IPI Criminal 4th No. 7C.05 to state:
“Under the law, the defendant shall be sentenced to death
if you, after weighing the factors in aggravation and
mitigation, unanimously find that death is the appropriate
sentence.
If you, after weighing the factors in aggravation and
mitigation, are unable to find unanimously that death is the
appropriate sentence, the court will impose a sentence of
natural life imprisonment, and no person serving a sentence of
natural life imprisonment can be paroled or released, except
through an order by the Governor for executive clemency.”
In addition, the circuit court made similar changes to IPI Criminal 4th
No. 7C.06 and the verdict form prescribed by IPI Criminal 4th No.
7C.09A.
At the jury instruction conference, defense counsel did not
disagree with the circuit court’s replacement of the phrase “no
mitigating factor sufficient to preclude imposition” with “death is the
appropriate sentence” in the jury instructions and verdict form.
Counsel did, however, contend that additional modifications should
be made. Counsel argued that the instructions and the verdict form
should be further modified to state that, if “one or more jurors
determines that death is not the appropriate sentence, the Court will
impose a sentence of natural life imprisonment.” In other words,
defense counsel asked the court to modify the instructions and verdict
form to track the language found in the second paragraph of the
amended version of section 9–1(g) of the murder statute.
The circuit court rejected defendant’s additional modification. The
court stated:
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“The [court’s] modification on this instruction and the
succeeding instructions are based on a change in the law as set
forth in Public Act 093-0605, *** [the modification] most
closely parallels the existing I.P.I. with the limited changes to
reflect the change in the status of the law.
So, it will be given in form and matter as presented by the
People over the Defense objection.”
Defendant now contends that the circuit court erred in refusing his
proposed modification. Defendant argues that his proposed
modification to the instructions and verdict form should have been
given because it “more clearly informed the jury that if any juror felt
that death was not appropriate, the jury could not sentence
[defendant] to death.” Defendant maintains that the circuit court’s
error warrants a new sentencing hearing.
We need not decide whether the circuit court erred by refusing to
incorporate the language of the statute in its entirety. Even if we
assume, as defendant contends, that the circuit court erred, defendant
was not prejudiced by that decision and therefore reversal is not
warranted.
Supreme Court Rule 451(a) states, in pertinent part:
“Whenever Illinois Pattern Jury Instructions, Criminal (4th
ed. 2000) (IPI Criminal 4th), contains an instruction applicable
in a criminal case, giving due consideration to the facts and the
governing law, and the court determines that the jury should
be instructed on the subject, the IPI Criminal 4th instruction
shall be used, unless the court determines that it does not
accurately state the law.” 210 Ill. 2d R. 451(a).
See also People v. Simms, 192 Ill. 2d 348, 412 (2000); People v.
Gilliam, 172 Ill. 2d 484, 519 (1996). When a pattern jury instruction
does not fairly state the law, the circuit court is authorized to modify
it. People v. Hester, 131 Ill. 2d 91 (1989).
In the case at bar, the circuit court modified the jury instructions
and verdict form to reflect what it concluded was a material change in
the first degree murder statute, i.e., the replacement of the phrase “no
mitigating factor sufficient to preclude imposition” with “death is the
appropriate sentence.” Defendant does not contest this modification.
However, no material change was made in the statute with respect to
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the unanimity requirement; under either version of section 9–1(g), the
jury’s decision to impose the death sentence had to be unanimous.
A jury instruction is “ ‘to convey to the minds of the jury the
correct principles of law applicable to the evidence submitted to it.’ ”
People v. Salazar, 126 Ill. 2d 424, 464 (1988), quoting People v.
Gambony, 402 Ill. 74, 81-82 (1948). Here, the instructions and verdict
form given to the jury properly conveyed the principle that unanimity
was required for the imposition of a death sentence. Thus, even if the
circuit court erred by not incorporating the language of the statute
verbatim, that error had no effect on the outcome of defendant’s
sentencing hearing. Accordingly, the error was harmless. See, e.g.,
People v. Ward, 187 Ill. 2d 249, 265 (1999) (“An error in a jury
instruction is harmless if the result of the trial would not have been
different if the proper instruction had been given”).
Whether Defense Counsel Was Ineffective for Not Presenting
Certain Evidence During Mitigation Proceedings
Throughout both his trial and sentencing proceedings, defendant
refused to cooperate with his attorneys in the development and
preparation of mitigation evidence. He instructed his family members
not to speak with defense counsel and refused to help defense
investigators in their efforts to uncover potentially mitigating
information. Defendant also refused to undergo any testing with the
mitigation specialist appointed by the circuit court, clinical
psychologist Dr. Larry Heinrich.
Defendant was admonished by the circuit court on numerous
occasions regarding the importance of developing mitigation evidence
and the impact his refusal to cooperate with counsel would have on
his case. Nevertheless, defendant repeatedly told the court he had no
interest in cooperating with either counsel or Heinrich. Defendant
stated that he did not want his attorneys to present any mitigation
evidence and, more than once, affirmatively waived his right to
present mitigation evidence at the sentencing hearing.
Before this court, defendant does not challenge the adequacy of
the circuit court’s admonishments regarding mitigation or contend that
he did not understand the importance of presenting mitigation
evidence. Nor does defendant argue that defense counsel failed to
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adequately investigate possible sources of mitigation. Instead,
defendant maintains that his attorneys were constitutionally ineffective
because they did not introduce into evidence certain medical records
which, despite defendant’s lack of cooperation, they were able to
uncover during the course of their investigation.
The medical records defendant points to are from a hospital in
Flint, Michigan. The records indicate that, in June of 1988, defendant
suffered head injuries when he was struck by a car, and that in May of
1992, he attempted suicide by leaving a car running in an enclosed
garage. Defendant contends that the only reason his attorneys failed
to introduce these records was because defendant instructed them not
to do so. Defendant further contends, however, that the decision to
introduce, or withhold, mitigation evidence is not a decision which is
left to a defendant in criminal proceedings. Instead, according to
defendant, the decision rests solely with trial counsel as a matter of
trial strategy. Because the decision to withhold the medical records in
this case was not defendant’s to make, defendant maintains that his
attorneys’ “deference to that decision, and consequent abdication of
their authority to make that decision, was substandard performance.”
Defendant also maintains that the medical records were mitigating and
that their omission from the sentencing proceeding was prejudicial.
Therefore, defendant contends that his attorneys were constitutionally
ineffective.
Defendant’s argument that counsel withheld the medical records
solely at his request is not supported by the record. On Friday,
February 6, 2004, just before the aggravation-mitigation phase of the
sentencing hearing was to begin, defense counsel requested a
continuance for “one last opportunity” to explain to defendant the
effect that his lack of cooperation had on his case. During the course
of discussing the request, the circuit court asked counsel to explain for
the record what had been done to obtain mitigation evidence. While
recounting the efforts that had been made and the difficulties
encountered because of defendant’s lack of cooperation, counsel for
defendant stated:
“The investigator also procured documents from several
hospitals in Michigan as well as there were some social
service–he was–Mr. Harris had been sentenced previously in
Michigan and he was given–he was sentenced to some I guess
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you would call it like Haymarket here in Illinois, but some
social centers to be evaluated and things like that and we
obtained records from those places. There was a psychological
evaluation that was part of the discovery and we tendered all
of those materials to the mitigation expert Dr. Heinrich and
we prepared everything that we could outside of the fact that
Mr. Harris would not cooperate. He would not take any tests
and he made that clear on the record on several occasions.”
(Emphases added.)
On this same date, the circuit court admonished defendant regarding
his right to present mitigating evidence. Defendant formally waived
that right. Then, “out of an abundance of caution,” the court
concluded that it would be appropriate to give defendant the weekend
to, once again, consider his decision not to cooperate with his attorney
in the preparation of mitigation.
The following Monday, February 9, 2004, defendant was again
admonished. As before, defendant affirmatively waived his right to
present mitigation evidence during the sentencing hearing. The circuit
court then asked defense counsel to again set forth, for the record,
what mitigation evidence had been uncovered. Counsel stated:
“The investigator was able to determine there were
medical records, obtained medical records from several
hospitals, and locations in the Michigan and Ann Harbor
[sic] Flint area.
There was also records uncovered through the discovery
process in regards to several social service outposts that Mr.
Harris had been assigned to during the eighties, and on his
previous cases we had obtained a mitigation expert report, as
one was appointed to this case previously to our appointment,
Dr. Larry Heinric[h].
Dr. Heinric[h] did interview the defendant, had a meeting
with him, was unable to perform any tests on Mr. Harris, by
Mr. Harris’ choice not to do that.
We did give Dr. Heinric[h] all the information that we
had uncovered to incorporate into a report. I met with Dr.
Heinric[h] on numerous occasions, went over the report, went
over any possible opportunities or areas we could explore
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outside of the defendant’s lack of cooperation to make that
report a mitigating report to be able to present mitigating
evidence to the jury or court, whichever we are going to do.”
***
Whatever was in there we tried to follow-up on, your
Honor, and what it led to was hospital records and different
things like that, where we were able to, in some cases, find,
and other cases we ran into dead ends, but we did everything
we could to get all that information as led to the mitigation
expert, which is all we had at the end.” (Emphases added.)
Thereafter, the circuit court stated:
“While we’re still outside the presence of the jury and at
sidebar, I want to ask the defense, I know that I asked the
defendant a series of questions last Friday, as well as this
morning, concerning his insistence and desire that you not
present any mitigation evidence on his behalf. In fact, he even
said he didn’t want you to argue for a penalty other than
death, but you have indicated in other sidebars, and I want to
make this a matter of record, that you also have strategic
reasons for your decisions not to present any mitigation
evidence, in addition to the defendant’s express desire not to
have any presented, is that true?
MR. McQUAID [Defense counsel]: That’s true.
MR. FAHY [Defense counsel]: That’s true, Judge.
THE COURT: Do you want to elaborate on that at all?
You don’t have to.
MR. McQUAID: Judge, it is just that Dr. Heinric[h], the
mitigation specialist, we’re in receipt of his report, and we
have tendered it to the state’s attorney prosecuting this matter,
and we have reviewed that, and as a trial lawyer, I see
absolutely no mitigation in that report, essentially because my
client refused to cooperate with Dr. Heinric[h].
It is just a strategic decision. As a trial lawyer I think it
best if you are going to put forth evidence, it be triable
evidence and evidence that is persuasive.
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We don’t have that, Judge, so we’re not going to attempt
to just throw something up there that I think would backfire
and just become additional aggravation for the State.”
From the foregoing, it is clear that defendant’s attorneys gave the
medical records that defendant asserts should have been introduced at
the sentencing hearing to Heinrich, the mitigation specialist. Heinrich
prepared a report which incorporated that information, and counsel,
for strategic reasons, chose not to present it. Nothing in the record
suggests, as defendant contends, that his attorneys withheld the
medical records from the sentencing hearing because defendant told
them that was what he wanted done.
Moreover, it is apparent from the record why counsel chose not
to introduce the medical records. Although the records from 1988 do
indicate that defendant suffered serious physical injuries following an
automobile accident, there is no indication that defendant suffered any
neurological impairment and there is no indication of any causal
connection between the injuries and the shootings at the Extra Value
liquor store in 1999. Thus, the evidence of physical injury in
defendant’s medical records from 1988 would have been of no help to
counsel in the presentation of his case in mitigation.
As defendant notes, there is a statement in the medical reports
from 1992 that defendant had “Bipolar affective disorder, not
otherwise specified,” and that defendant had “antisocial personality
traits.” But this diagnosis was made seven years before the shootings
at the liquor store in 1999. Because defendant refused to undergo any
psychological testing near the time of trial, defense counsel would
have had no way to relate the diagnosis in 1992 to defendant’s mental
health at the time of the sentencing hearing or at the time of the
shootings. Thus, again, the evidence of psychological problems in
defendant’s medical records would have been of no help to counsel.
Further, the medical records from 1992 were, in certain respects,
clearly detrimental to defendant. The records state that defendant was
depressed at the time of his suicide attempt because, in his words, he
was “in big trouble with the law.” Defendant did not identify what that
trouble was. In addition, the records contain background information
regarding defendant which included the following:
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“He just got out of jail in June of 1991 and has been on a
tether[1] and also on police hold. He was in jail for two years.
He was in two auto thefts and some other charges that got
him in prison. He was given an option of being in jail for four
years or for being in jail for two years and being on a house
arrest for two more years. He chose the second one.”
Given this information, the 1992 medical records could have been
used by the State to reinforce defendant’s prior criminal record.
“[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.”
Strickland v. W ashington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 695,
104 S. Ct. 2052, 2066 (1984). In this case, the medical records at
issue contain nothing regarding defendant’s physical or mental
condition that defense counsel could have used in mitigation and, at
the same time, contain information that could have been used by the
State in aggravation. In light of this fact, we conclude that counsel’s
strategic decision to withhold the medical records from the sentencing
hearing did not fall below an objectively reasonable standard of care.
Accordingly, we reject defendant’s claim of ineffective assistance of
counsel.
Constitutionality of the Illinois Death Penalty Statute Under
Apprendi and Ring
Defendant argues that the Illinois death penalty statute violates the
principles set forth in Apprendi v. New Jersey, 530 U.S. 466, 147 L.
Ed. 2d 435, 120 S. Ct. 2348 (2000), and Ring v. Arizona, 536 U.S.
584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002), because, at the
second stage of the sentencing proceedings, the State is not required
to prove beyond a reasonable doubt that aggravating factors outweigh
the mitigating factors before a death sentence may be imposed. We
disagree.
As we recently explained in People v. Thompson, 222 Ill. 2d 1, 54
(2006):
1
A “tether” is an electronic home monitoring device. See People v. Sheets,
223 Mich. App. 651, 653, 567 N.W.2d 478, 479 (1997).
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“[T]he rules announced in Apprendi and Ring are not
applicable to the second phase of a death penalty proceeding
in Illinois because the trier of fact has already found beyond a
reasonable doubt the necessary aggravating factor for
imposition of the death penalty and therefore cannot increase
the penalty beyond the statutory maximum of death.”
See also People v. Mertz, 218 Ill. 2d 1, 93-94 (2005); People v.
Harris, 206 Ill. 2d 293, 326-27 (2002); People v. Ballard, 206 Ill. 2d
151, 202-05 (2002); People v. Davis, 205 Ill. 2d 349, 372-75 (2002).
This case illustrates the principle. The jury found defendant eligible
for the death penalty after the State proved he had committed two or
more murders. At that point, based exclusively on factors proven
beyond a reasonable doubt before the jury, defendant faced a statutory
maximum sentence of death. The jury’s subsequent weighing of
aggravating and mitigating circumstances, and its decision that death
was the appropriate sentence, did not violate Apprendi or Ring
because it did not increase the maximum penalty already permitted by
the jury’s finding of death eligibility. Accordingly, we reject
defendant’s argument on this point.
Whether the Illinois Death Penalty Statue Is Arbitrarily Applied
Finally, defendant argues that Illinois’ death penalty statute “is
arbitrarily applied, based on race, geography, procedural evolution,
discretion and mistakes of fact.” We have twice previously rejected
this same argument. See Thompson, 222 Ill. 2d at 54; Mertz, 218 Ill.
2d at 95-98. Accordingly, we need not discuss this issue further
except to note, as we did in Thompson, that defendant does not argue
that race, geography or “procedural evolution” actually played any
part in the decision to seek or impose the death penalty in his case.
Conclusion
For the foregoing reasons, we affirm defendant’s convictions and
sentences. The clerk of this court is directed to enter an order setting
Wednesday May 9, 2007, as the date on which the sentence of death
entered in the circuit court of Cook County, is to be carried out.
Defendant shall be executed in the manner provided by law. 725 ILCS
5/119–5 (West 2004). The clerk of this court shall send a certified
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copy of the mandate in this case to the Director of Corrections, to the
warden of Tamms Correctional Center, and to the warden of the
institution where defendant is confined.
Affirmed.
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