People v. Hanson

Docket No. 106566.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ERIC
HANSON, Appellant.
Opinion filed June 24, 2010.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Karmeier, and Burke concurred in the judgment and opinion.
OPINION
Following a jury trial in February 2008, in the circuit court of
Du Page County, defendant, Eric Hanson, was convicted of four
counts of first degree murder (720 ILCS 5/9–1(a)(1) (West 2006)),
two counts of armed robbery (720 ILCS 5/18–2(a)(1) (West 2006)),
two counts of aggravated kidnapping (720 ILCS 5/10–2(a)(8) (West
2006)) and two counts of identity theft (720 ILCS 5/16G–15(a)(1),
(d)(1)(D) (West 2006)). The jury found death to be the appropriate
sentence on the murder convictions and the circuit court of Du Page
County imposed a sentence of death. The circuit court also found that
the armed robbery and aggravated kidnapping convictions merged into
the murder convictions and, therefore, did not enter sentences on
those counts. However, the circuit court did sentence defendant to
concurrent terms of 15 years for the identity theft convictions.
Defendant now appeals both his conviction and sentence.
BACKGROUND
Defendant was convicted of killing his sister, Katherine Tsao, and
Katherine’s husband, James. He was also convicted of killing his
parents, Terrence and Mary Hanson. The bodies of the four victims
were found in James and Katherine’s home (the Tsao home) on
September 29, 2005. Katherine and James had been bludgeoned.
Terrence and Mary had been shot in the head. Police later determined
that Terrence and Mary had been shot in their own home (the Hanson
home) and then had been wrapped in tarps and transported to the
Tsao home.
An investigation into the murders led police to the defendant after
police spoke with defendant’s other sister, Jennifer Williams. Jennifer
told police that Katherine telephoned her six weeks prior to the
murders, to tell Jennifer that defendant had been engaged in a scheme
to obtain credit in their parents’ names. Katherine also told Jennifer
that defendant had threatened Katherine by saying that if she told their
father what defendant had been doing, he would kill her. The
investigation quickly centered on defendant, leading to his arrest.
Prior to trial defendant filed several motions in limine, mostly
attempting to prevent admission of opinion and hearsay testimony
stemming from the investigation. One of these motions sought to
prevent reference to Jennifer’s belief that defendant was responsible
for the crime. This motion was denied. The State also filed a motion
in limine seeking to admit testimony from Jennifer regarding her
phone conversation with Katherine six weeks before the murders. The
circuit court granted this motion over defendant’s objection. As
discussed below, defendant has challenged both of these rulings.
The case proceeded to trial. At the guilt phase of the trial, the
following evidence was heard.
Chiuchih Tsao, James’s brother, testified that he and James
worked together at a trading company. The last time he saw James
and Katherine alive was around 5 p.m. on the day of the murders,
when the two left work for the day. He then testified that James did
not show up for work the next day. He thought it very strange that
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James did not arrive for work, so he went to the Tsao home. When he
arrived, he first rang the bell. Then, when no one answered, he peered
in a window. From the window, Tsao saw a woman on the floor with
blood around her. He called his daughter, who, when she arrived at
the house, called the police. The fire department arrived first and
broke down the front door. Tsao testified that he saw a person sitting
on the couch when he went into the house. He went upstairs but did
not see anyone there. At that time police asked him to leave the house.
During his testimony, Tsao also identified a watch that he had bought
for James.
John Eul, an Aurora firefighter, then testified to the events
following the emergency call to the Tsao home. Eul testified that
when he and his partner arrived, they forced down the front door and
entered the house. Inside they saw the bodies of Katherine, James, and
Mary. Eul testified that they then determined the scene was not safe
and exited the house.
Katherine Von Holten, Mary’s coworker and friend, testified that
she became worried when Mary did not show up for work on
September 29. She testified that Mary had not called in to say she
would be late. After noon, Von Holten called Mary at her house
phone and cell phone but received no answer. At that point she and
another coworker drove to the Hanson home. They entered the
Hanson home with the help of a keypad code provided by Jennifer
Williams. Inside the home, they noticed nothing out of the ordinary,
other than a strong fire burning in the fireplace. Mary’s coworkers
then left a note for Mary. The note was left next to a note, written by
defendant, which read: “Mom, dad, see you Sunday. Have fun in
Galena.” Next to this note was some cash. The note included a
postscript that indicated this money was for “payment this month.”
While Von Holten was at the Hanson home, Mary’s nephew, Bob
Stutelberg, arrived. Von Holten testified that Stutelberg also looked
through the house. Stutelberg then drove the three of them to the
Tsao home. By the time they arrived, emergency personnel had
already arrived.
Stutelberg testified that defendant called him the morning of
September 29. He testified defendant told him he was on his way to
Midway Airport to catch a flight. Defendant asked if he would make
it in time. Stutelberg testified defendant was going to be flying to
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California. He also testified that defendant mentioned he did not get
much sleep the previous night, as his mattress was “rotten.” In a
second telephone call from defendant, defendant informed Stutelberg
that he was at the airport and was going to make his flight.
Stutelberg also testified that on September 29 he received a call
from one of Terrence’s coworkers. The coworker told Stutelberg that
Terrence had missed a meeting that morning. Stutelberg testified that
it was unusual for Terrence to miss meetings. Stutelberg tried
contacting Terrence and Mary by phone, but was unable to reach
them. At this time, Stutelberg drove to the Hanson house, where he
encountered Mary’s coworkers. Stutelberg, too, mentioned that other
than the fire in the fireplace, nothing appeared out of the ordinary in
the house. Stutelberg then accompanied Mary’s coworkers to the
Tsao home.
Stutelberg further testified that between 5:30 and 6 p.m. he called
defendant on his cell phone to tell him that the police were saying they
found four bodies in the Tsao home. Stutelberg turned the phone over
to Detective Nilles of the Aurora police department, who had a
conversation with the defendant.
Christine Undesser testified that she and the defendant had gone
out together on September 28, the night of the murders. She testified
that she and defendant were out from 7 p.m. until around 9:30 p.m.
During the evening defendant mentioned that he was flying to
California to meet with Allison Beck, his ex-fiancée. Defendant drove
Undesser to her home, arriving around 10 p.m. She and defendant
talked for 15 minutes and then defendant left.
Allison Beck testified that she and defendant had known each
other for six years. They began dating in 2002 and eventually decided
to get married. When they were engaged, she and defendant moved to
Illinois from Phoenix, living with defendant’s parents. Beck testified
that during the time they lived together, she had seen defendant
looking through papers on Terrence’s desk. She also testified that
defendant had mentioned he would get an inheritance if his parents
ever passed away.
In 2004, Beck broke off her engagement to defendant. At some
point she moved to California, yet remained in contact with defendant.
She testified that during the time they were dating, defendant was
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spending more money and buying nicer things. In May 2005, Beck
inquired about defendant’s finances and he replied that he was doing
very well at his job. However, Beck also had spoken with Katherine
several times in August 2005. As a result of these conversations, Beck
checked her credit. During one phone conversation, defendant asked
if Beck had been speaking with Katherine. Beck responded, falsely,
that she had not been talking with Katherine. According to Beck,
defendant responded, “If I ever find out, you are going to get it.”
Beck asked him if that was a threat. Defendant replied, “It’s a fact.”
Beck then testified about the week leading up to the night of the
murders. She had invited defendant to a concert in Los Angeles.
Defendant had agreed to go, and planned to fly to California on
September 29. Beck testified defendant had told her his flight left
Chicago at 9:30 a.m. and that he would be leaving his house at 6:30
a.m. in order to arrive at the airport in time. On the evening before he
was to fly to Los Angeles, defendant called Beck around 11:30 p.m.,
Central time. Defendant said he had a bad connection, and asked Beck
to call him back on his parents’ home phone number. Beck did call
him, and Terrence answered the phone at first. Defendant then
answered another phone in the house, and Terrence hung up. Beck
and defendant then had a conversation about his trip to California. The
next morning, defendant again called Beck to say that he was running
late to the airport because of traffic, but that he was going to be on a
later flight. When defendant arrived, Beck asked him what he did on
the plane and defendant replied that he slept the entire time. He said
he did not know why he was so tired.
Deborah Chereskin, a neighbor of the Hansons, testified that she
took her dog out in the backyard at 1:50 a.m. on September 29.
Chereskin’s backyard abuts the backyard of the Hanson house.
Chereskin testified that when she took her dog out, all of the lights in
the Hanson house were turned on, including the basement window
where defendant’s bedroom is located.
State’s witnesses then testified regarding the crime scene at the
Tsao home. Sergeant Nisha Kalra, an evidence technician and
photographer, testified to the layout of the Tsao home, and identified
several pictures depicting the location and position of the victims’
bodies, a laptop computer, bloodspatters and other forensic evidence.
Detective Christopher Berard, of the computer forensics division of
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the Naperville police, testified that the hard drive taken from the
computer found near James’s body was last accessed at 10:43 p.m. on
September 28.
Next, Jennifer Williams, sister to both Katherine and defendant,
testified as to defendant’s spending habits in the months leading up to
the murders. Williams also testified to the conversation she had with
Katherine six weeks before the murders. In that conversation
Katherine told her that defendant had admitted to opening up credit
accounts in his parents’ names and had charged around $80,000 to
these accounts. Defendant had admitted this both to Katherine and to
Mary. Defendant promised to pay the money back and asked that
Katherine and Mary not tell Terrence. Williams testified that Katherine
told defendant she was going to tell Terrence anyway. At that point
Katherine told Williams that defendant had threatened her, saying, “If
you tell dad I’ll fucking kill you.” Katherine called Williams that same
day to tell her about the confrontation.
Williams testified that Katherine called her again the following
day. Katherine called to say she did not go to work because “she was
really freaked out” about what defendant had said the day before.
Over the next few weeks, Katherine and Williams continued to talk
about the situation over the phone, but Williams did not provide any
more specifics. Williams also testified that on the night of the murders,
Katherine had called her twice, at 10 and 10:06 p.m. Williams was out
of the house the first time Katherine called, but Katherine spoke to
Williams’s daughter. The second time Katherine called, Williams did
not answer, as she was getting ready for bed.
The following morning, Williams tried calling Terrence to ask
about a home repair issue, but there was no answer. Williams testified
she also tried to reach Mary at work, as well as Mary’s cell phone and
Katherine’s cell phone. She called again later in the morning, and then
made repeated attempts to call each of them. She also spoke with Bob
Stutelberg, and she asked him to drive over to house to check on her
parents. Williams testified she also spoke with Mary’s coworkers and
provided them the entry code for the garage door. Later, from the
Tsao home, Mary’s coworkers put Williams on the phone with
Detective Nilles, of the Aurora police department. During that
conversation, Williams told Detective Nilles that she “was really
worried because my brother had threatened my sister.” Williams
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testified as to a copy of Mary’s credit report she found when cleaning
out Mary’s bedroom dresser. The credit report was dated August 13,
2005, which was the day before Katherine called her about
defendant’s threat.
Lisa Stewart, a custodian of records for Southwest Airlines,
testified that the airline’s records showed defendant had purchased a
ticket from Chicago to Los Angeles, departing at 11:15 a.m. and
arriving at 1:30 p.m. A return flight was booked at the same time, for
flight on October 2, leaving Los Angeles at 11:15 a.m. and arriving in
Chicago at 5:10 p.m. Stewart also attempted to testify to a note
included in those records. That note read “if passenger checks in,
please contact the LAPD ***. Passenger is very dangerous.” This
testimony drew an objection from defense counsel and the objection
was sustained. Stewart then testified to another reservation defendant
had made for a flight on September 30, leaving Los Angeles at 7:15
p.m. and arriving in Chicago at 1:05 a.m. on October 1. Stewart
testified defendant did not board either of defendant’s booked return
flights. Sarah Voss, an airlines record custodian for United Airlines,
testified that defendant had booked a flight on September 29, leaving
Los Angeles at 11:05 p.m. Voss confirmed that defendant did board
this flight.
The State called several witnesses to explain how various evidence
samples were collected and how the case was investigated. The
witnesses, mainly police officers, testified that bloodstains were found
in the Hanson home, that the Hansons’ mattress had been switched
with a mattress in the guest bedroom, that the murderer had attempted
to repair the headboard where bullets had penetrated and that a
cordless drill was found. One witness testified that a bullet fragment
was found in an attic joist near the Hansons’ bed. The State later
argued this evidence demonstrated the calculated nature of the crime.
John Collins, a firearms and tool mark expert, testified that the
bullet found in the joist matched other bullets found within Terrence
and Mary. Collins also testified as to tool marks made in an attempt
to repair the headboard of the Hansons’ bed and testified that the
plastic garbage bag found under Terrence’s head came from a box of
garbage bags found at the Hanson house. He compared markings on
a plastic zip lock bag found in defendant’s car, containing green latex
gloves, to a box of zip lock bags at the Hanson home, and concluded
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that the bag found in the car came from the same manufacturer as the
box of bags in the Hanson home.
Dr. Scott Denton, a medical examiner, testified to his autopsies of
James and Katherine Tsao. He described in detail the various injuries
sustained by both victims. He confirmed that James’s and Katherine’s
deaths were caused by skull and brain injuries as a result of blunt
trauma to the head. He also testified that James lacked any indication
of defensive wounds. However, Denton did conclude that injuries to
Katherine’s forearms were defensive wounds. Denton also testified
that Katherine’s ring finger had been broken. He opined it was broken
by being bent backwards. On cross-examination, Denton
acknowledged that her ring finger had no indentation from a ring and
no cuts or bruises. Denton further testified that he did not know if
Katherine was wearing a ring when she was killed.
Similarly, Dr. Jeff Harkey, chief forensic pathologist for the
Du Page County coroner’s office, testified as to his autopsies of
Terrence and Mary Hanson. Harkey concluded that each victim died
as a result of a single gunshot wound to the head. Harkey also
concluded, based on a stippling pattern on Terrence’s head, that a
second gunshot was fired near Terrence’s head but did not hit him.
Craig Morehouse, a Wisconsin state trooper, testified that he
initiated a traffic stop of defendant’s vehicle north of Madison,
Wisconsin. He further testified that he informed defendant that there
was a warrant for his arrest in Illinois, and took defendant to a nearby
county sheriff’s department.
Reynaldo Rivera, an evidence technician with the Aurora police
department, testified that he examined defendant’s vehicle after his
arrest. Rivera testified he began by taking photographs, and then
examined the contents of the vehicle. Specifically, he testified that he
found a clear zip lock sandwich bag containing rubber or vinyl gloves.
The gloves had a brown, reddish flaky substance on them. Rivera also
found a gold Rolex watch in the center console of the vehicle along
with a silver, princess-cut diamond ring.
Tamara Camp, a DNA analyst, testified that she tested swabs
taken from both crime scenes, as well as from items found in
defendant’s vehicle the night he was stopped by Wisconsin police.
Camp identified several samples that contained DNA profiles
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matching those of James and Katherine Tsao and Terrence and Mary
Hanson. Profiles matching Terrence and Mary were found both at the
Hanson home as well as inside Terrence and Mary’s SUV. Camp
testified that she identified a DNA profile matching James on the
watch found in defendant’s SUV. Camp also testified that although
she noticed a brown speck on the ring found in defendant’s SUV, she
was unable to identify a DNA profile. Lastly, Camp testified that
stains on the green gloves found in defendant’s vehicle tested positive
for blood, and that the gloves contained a DNA profile matching that
of Terrence.
Michael Nilles, a detective with the Aurora police department,
testified as to his investigation of the murders. When he arrived at the
Hanson home, he encountered Belinda Robinson, Mary’s coworker
who had gone to the home to check on Mary. Belinda handed Nilles
a cell phone. On the other end of the phone was defendant’s sister,
Jennifer Williams. Nilles testified that this phone conversation led him
to consider defendant a suspect. After that conversation, Mary’s
nephew, Bob Stutelberg, gave his cell phone to Nilles, telling Nilles
that defendant was on the phone. During this conversation, Nilles
confronted defendant with, among other things, the statement
“Jennifer thinks you did this” and told defendant that he knew
defendant had an argument with Katherine over his using his parent’s
identities to get credit cards. Nilles informed defendant that he was
sending two detectives to Los Angeles to meet with defendant. Nilles
testified to a series of calls between himself and defendant, including
a conversation in which defendant acknowledged being at the airport
and Nilles told defendant that it seemed as if he was running from the
police, which defendant denied.
Nilles further testified that on Friday morning, September 30, he
received a phone call from defendant, who indicated he was still in
Los Angeles. However, following a phone call with the FBI, Nilles
had reason to believe defendant was actually back in Illinois, and
instructed local police agencies to look for defendant traveling north
toward Wisconsin. Following defendant’s apprehension in Wisconsin,
Nilles traveled there and interviewed defendant. Defendant was
advised of his Miranda rights, which defendant waived. Defendant
repeatedly denied being involved in the murders.
The State also questioned several witnesses regarding the GPS
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device recovered from defendant’s vehicle. The State elicited
testimony that tracked the movements of defendant’s vehicle on the
evening prior to the murders as well as its movements the morning
before the bodies were discovered and the following day, when
defendant returned to Illinois. Testimony also revealed the device was
turned off between 7:30 p.m. the day of the murders and
approximately 9:30 a.m. the day after.
During the trial, the State also called several witnesses to establish
the basis for the identity theft charges against defendant. As defendant
is not challenging the evidence or the convictions on these counts, we
need not describe this testimony in detail.
For the defense, Jennifer Cones, a forensic scientist certified as an
expert in fingerprint identification and comparison, testified that she
examined a fingerprint found on the bag containing bloodstained
gloves that was found in defendant’s car. Comparing this print to
defendant’s fingerprints, she concluded that the two did not match.
However, on cross-examination, she acknowledged that she did not
compare the print to the fingerprints of Terrence and Mary Hanson.
Defendant testified next. He acknowledged that he had used his
mother’s and father’s names in order to secure credit, which he then
used to purchase various items. He then admitted that in the middle of
August his parents confronted him with credit reports and defendant
admitted that he had been charging purchases to these credit cards.
According to defendant, he convinced Mary that he would stop and
that he would begin to pay her back. When he was separately
confronted by Terrence, defendant testified, his father agreed to allow
defendant to take out a consolidation loan in Terrence’s name, in
order to pay off some of the current debt.
Defendant then testified as to his whereabouts the evening of
September 28, prior to the murders. He met with Christine Undesser
at a bar and returned to his parents’ house, where he was living,
around 11 p.m. Defendant testified that Terrence was awake in his
office when defendant arrived home. Around 11:15 defendant called
Allison Beck in Los Angeles. The connection was not good, and
defendant asked Allison to call him back on his parents’ house phone.
When Allison called, Terrence answered, but defendant answered
shortly after and told Terrence, “I got it.” Defendant then talked to
Allison until approximately 11:30. Defendant testified that after this
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phone call, he put a movie into his DVD player and fell asleep during
the movie, probably around 1:30 a.m.
Defendant testified that the following morning, he woke up, went
to a convenience store to buy cigarettes, took a shower, finished
packing for his trip to Los Angeles and left the house. He testified he
planned on driving to James and Katherine’s house in order to return
Katherine’s wedding ring and the watch belonging to James.
According to defendant, Katherine had taken the ring off while
painting some flower pots. As for the watch, defendant testified that
Katherine had wanted to order Terrence a watch and needed to know
how many links were needed for the chain. According to defendant,
Katherine was going to order the watch because Terrence did not
always do things in a timely fashion. If Katherine helped get the right
measurements, she would order the watch so Terrence would not
have to do anything. Katherine had James’s watch in order to compare
it to Terrence’s wrist for sizing purposes and defendant testified that
Katherine left the watch at the Hanson home. Defendant testified that
although he intended to return the items before he went to the airport,
he was in a hurry to get to the airport and forgot to stop by their
house.
On the way to the airport, defendant realized that he did not have
his driver’s license and that he was not going to be able to get to his
flight on time. He returned to his parents’ home to get his license and
called to book a new reservation to Los Angeles. On his second
attempt to get to the airport, defendant called Bob Stutelburg to ask
where to park and whether he thought defendant would be able to
make his flight in time. Defendant testified that he did get to the
airport in time and boarded his flight to Los Angeles. While in Los
Angeles, defendant learned from Stutelberg that there were four
persons dead in James and Katherine’s house. Defendant denied
killing any of the victims.
The jury returned a verdict of guilty as to all four counts of first
degree murder. The jury also found defendant guilty of the armed
robbery of James and Katherine Tsao and of the aggravated
kidnapping of Terrence and Mary Hanson. The jury found defendant
guilty of the identity theft of Terrence and Mary Hanson.
In the eligibility phase of defendant’s sentencing trial, the jury
returned a verdict finding defendant to be eligible for a death sentence.
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The verdict was based on defendant being 18 years or older at the
time of the murders and that the deaths were a result of the intent to
kill more than one person, the murders were committed in a cold,
calculated and premeditated manner pursuant to a preconceived plan
scheme or design, James and Katherine were killed in the course of an
armed robbery and Mary and Terrence were killed in the course of an
aggravated kidnapping.
At the sentencing hearing itself, the State first argued that the fact
there were multiple victims and the fact that the murder was
committed in a calculated and premeditated manner were both
sufficient aggravating factors. The State also argued that defendant’s
criminal history, which included home invasions, retail theft and
property damage, was an aggravating factor. The State referred to
testimony from witnesses detailing other incidents involving violence
and threats made by defendant. Lastly, the State asked the jury to
consider the impact statements of the victims’ family members.
In mitigation, counsel for defendant argued that the murder was
committed while defendant was under the influence of an extreme
mental or emotional disturbance. Defendant relied primarily on the
testimony of Dr. Dawkins, who concluded that defendant would not
be a risk of harm to others in a structured environment such as prison.
After weighing the evidence in aggravation and mitigation, the jury
returned a verdict that death was the appropriate sentence. The court
declined to enter a written order setting forth a basis for disagreement
with the jury’s verdict, as permitted by section 9–1(g) of the Criminal
Code of 1961 (720 ILCS 5/9–1(g) (West 2006)). Instead, the circuit
court concurred in the decision of the jury and sentenced defendant to
death. The court found that the convictions for armed robbery and
aggravated kidnapping merged into the convictions for murder and so
did not enter sentences on those counts. The circuit court did sentence
defendant to concurrent terms of 15 years for defendant's identity theft
convictions.
Pursuant to Supreme Court Rule 603 and section 9–1(i) of the
Criminal Code, defendant now appeals directly to this court. 134 Ill.
2d R. 603; 720 ILCS 5/9–1(i) (West 2006).
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ANALYSIS
On appeal to this court, defendant raises nine arguments. These
arguments relate to both the guilt and sentencing phases of his trial
and challenge the constitutionality of the death penalty statute itself.
We address each in turn, supplementing each analysis with additional
facts from the record when necessary.
I. Forfeiture by Wrongdoing
Defendant’s first argument is that the circuit court erred in
admitting the testimony of Jennifer Williams relating to a conversation
Jennifer had with her sister, Katherine. In that conversation, Katherine
mentioned that defendant had threatened her. Prior to trial, the State
filed a motion to forfeit defendant’s right to cross-examine these
statements made by Katherine. The State argued that defendant
sought to prevent Katherine from serving as a witness against him and
did so by killing her. In a hearing on the State’s motion, Jennifer’s
testimony was consistent with the testimony she would later give at
trial. Katherine phoned her shortly after she and Mary had confronted
defendant about the credit cards he had obtained in Mary’s name.
Defendant had admitted to Mary and Katherine that he had gotten the
credit cards issued and had run up debt. He also promised he would
pay the money back to his parents. At that time Mary and Katherine
agreed that neither of them would tell Terrence about what defendant
had done.
After Mary had left the room, however, Katherine told defendant
that she would tell Terrence about defendant’s scheme. Katherine told
Jennifer that defendant responded by saying, “If you tell dad, I will
fucking kill you.” Jennifer testified that Katherine was very upset
during the phone conversation. Jennifer urged Katherine to tell
Terrence what had happened, but Katherine demurred, saying she had
promised Mary not to tell Terrence.
When Jennifer had a second conversation with Katherine the next
day, Katherine said she “had a very unsettling feeling about what Eric
had said.” She told Jennifer that she had stayed home from work and
turned on her home security system. Lastly, Jennifer testified that she
had found a printout of a credit report in Mary’s name. The report had
Mary’s handwriting on it, and the report was found in Mary’s dresser
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drawer. Several items on the report were circled and other had
question marks next to them.
On cross-examination, Jennifer acknowledged that she did not
know why Katherine would tell defendant she was going to tell
Terrence what defendant had done, but then tell Jennifer that she
would not be telling Terrence. She also admitted that she did not call
the police after Katherine told her about defendant’s threat, but
explained that she was trying to honor what Katherine had asked, that
she not tell anyone else.
At the hearing, the State also proffered testimony which tracked
what would eventually be its case in chief. This testimony included the
estimated timeline of the murders, defendant’s whereabouts the day
of, and days following, the murders and a summary of the forensic
evidence discovered at the scene of the murders. The State also
referred to a letter from defendant to Bob Stutelberg in which
defendant reported that he had told Katherine to stay out of his
business and out of his life. Further, he told Katherine that if she did
not, she would “regret it.” According to the letter, Katherine
responded by asking if defendant was threatening her. Defendant
responded, “No, I’m promising.”
Arguing the motion, the State admitted that Katherine’s
statements to Jennifer were hearsay. However, pursuant to the
doctrine of forfeiture by wrongdoing, defendant had forfeited his right
to cross-examine Katherine on those statements. The State argued
that it had proved, by a preponderance of the evidence, that defendant
committed a wrongdoing, murdering Katherine with the intent to
undermine the judicial process or destroy the integrity of the criminal
justice system by keeping Katherine from going to the police or
testifying against him.
Defendant argued in response that the State had not proven any
wrongdoing. Specifically, defendant questioned whether one person
could have committed these murders, and could not demonstrate that
defendant was in the Tsao home at 10:43 p.m. when the laptop was
accessed for the last time. Defendant also challenged the State’s
forensic evidence as insufficient to prove any wrongdoing.
The circuit court concluded the State had proved forfeiture by
wrongdoing by a preponderance of the evidence. The court
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specifically found that the State proved defendant committed the
murder and proved that defendant did so with the intent to make
Katherine unavailable as a witness. The court, therefore, granted the
State’s motion and allowed Jennifer’s testimony to be introduced at
trial.
In reviewing this issue, we first note that the State argues
defendant has only challenged the circuit court finding that, by a
preponderance of the evidence, defendant made Katherine unavailable.
Defendant conceded at oral argument that he is not challenging the
finding that he acted with the intent to make Katherine unavailable.
Therefore, we will not review this finding concerning intent.
Instead, we address defendant’s contention that the circuit court
erred by admitting Jennifer’s testimony because the doctrine of
forfeiture by wrongdoing does not permit admission of nontestimonial
hearsay. Defendant also suggests that even if nontestimonial hearsay
may be admitted under the doctrine, the reliability of the statements
must be considered in the admission decision. Lastly, defendant argues
that the State’s proffered testimony was insufficient to prove by a
preponderance of the evidence that defendant committed Katherine’s
murder.
A reviewing court will not reverse the circuit court’s ruling on a
motion in limine absent an abuse of discretion. People v. Kirchner,
194 Ill. 2d 502, 539 (2000). However, defendant is not arguing the
circuit court abused its discretion. Rather defendant argues that the
court had no discretion to admit Jennifer’s testimony because the
forfeiture by wrongdoing doctrine requires that the statements be
testimonial and because the statements must show some measure of
reliability. Defendant correctly argues that these questions are ones of
law to be reviewed de novo. People v. Caballes, 221 Ill. 2d 282, 289
(2006).
The doctrine of forfeiture by wrongdoing is a common law
doctrine. As early as 1878, the United States Supreme Court
acknowledged that if “a witness is absent by [a defendant’s] own
wrongful procurement, he cannot complain if competent evidence is
admitted to supply the place of that which he has kept away.”
Reynolds v. United States, 98 U.S. 145, 158, 25 L. Ed. 244, 247
(1878). The doctrine was later codified, at the federal level, by Federal
Rule of Evidence 804(b)(6) as an exception to the general hearsay
-15-
rule. Fed. R. Evid. 804(b)(6). More recently, the Supreme Court, in
Crawford v. Washington, recognized that the forfeiture by
wrongdoing doctrine, in addition to serving as an exception to the
hearsay rule, also “extinguishes confrontation claims on essentially
equitable grounds.” Crawford v. Washington, 541 U.S. 36, 62, 158 L.
Ed. 2d 177, 199, 124 S. Ct. 1354, 1370 (2004). In People v. Melchor,
our appellate court first recognized Rule 804(b)(6) as the law of
Illinois. People v. Melchor, 362 Ill. App. 3d 335, 345 (2005).
This court confirmed the appellate court’s recognition of the
doctrine in People v. Stechly, 225 Ill. 2d 246, 268-69 (2007).
However, defendant argues that Stechly adopted the doctrine only in
the context of testimonial statements to be analyzed under Crawford.
The doctrine of forfeiture by wrongdoing is not limited to
evidentiary questions that raise Crawford concerns. Rather, Rule
804(b)(6) is a general exception to the hearsay rule. We have already
expressed that the rule is coextensive with the common law doctrine.
Stechly, 225 Ill. 2d at 272-73. This conclusion is based on the
Supreme Court’s acknowledgment that Rule 804(b)(b) codifies the
forfeiture doctrine. Davis v. Washington, 547 U.S. 813, 833, 165 L.
Ed. 2d 224, 244, 126 S. Ct. 2266, 2280 (2006). Therefore, although
left unsaid in Stechly as a matter of Illinois law, we now expressly
recognize that the doctrine serves both as an exception to the hearsay
rule and to extinguish confrontation clause claims.
Traditionally, most hearsay exceptions allow the admission of
nontestimonial evidence. Crawford, 541 U.S. at 56, 158 L. Ed. 2d at
195, 124 S. Ct. at 1367. Defendant provides no argument, other than
a possible lack of reliability, for why the forfeiture by wrongdoing
doctrine should not also permit nontestimonial statements. As we next
discuss, lack of reliability is an insufficient rationale. Therefore, we
hold that the doctrine may be applied to admit both testimonial and
nontestimonial statements.
Turning to reliability, defendant misapprehends the purpose of the
forfeiture by wrongdoing doctrine by arguing for requiring indicia of
reliability. Had Katherine not been made unavailable by defendant’s
wrongdoing, she might have testified as to the threat defendant made
against her. Defendant would have then had an opportunity to test
Katherine’s reliability by cross-examining her, perhaps asking why she
did not go to police if she really thought she was in danger. He could
-16-
have also asked whether she fabricated the threat because she was
angry with defendant. Under the circuit court’s findings, however,
defendant forfeited his ability to challenge the reliability of Katherine’s
statements by improperly preventing her from testifying. Requiring
additional indicia of reliability would, therefore, undermine the
equitable considerations at the center of the doctrine.
Nor is reliability a significant consideration with respect to
Jennifer’s testimony relating her conversation with Katherine. Unlike
Katherine, Jennifer was present and able to testify. Thus, defendant
had every opportunity to demonstrate that Jennifer was exaggerating,
or even fabricating, the conversation she had with Katherine.
Defendant cross-examined Jennifer, pointed out to the jury the
seemingly contradictory dates given for the phone conversation and
asked Jennifer why, if she thought Katherine was upset and serious
about the threat, she did not call the police after the conversation.
Notwithstanding such arguments, a reasonable jury could conclude,
and we can presume did conclude, that Jennifer was telling the truth
and that Katherine indeed reported that defendant had threatened her.
The jury was aided in this effort by the State’s entering into evidence
defendant’s letter, and the credit report found in Mary’s bedroom,
which could be construed to support the conclusion that Jennifer was
reliably relaying what Katherine had told her.
In summary, the forfeiture by wrongdoing doctrine by its
application obviates the need to consider reliability. Under the
doctrine, defendant had the opportunity to challenge the reliability of
Jennifer’s testimony through cross-examination. Further, by his own
wrongdoing, defendant forfeited his right to challenge the reliability
of Katherine’s statements to Jennifer. Accordingly, we hold that so
long as the declarant’s statements are relevant and otherwise
admissible, statements admitted under the forfeiture by wrongdoing
doctrine need not reflect additional indicia of reliability. Additionally,
based on the testimony elicited at the hearing, discussed above, we
cannot say that the circuit court’s finding that defendant caused
Katherine to be unavailable was arbitrary or unreasonable. The circuit
court, therefore, did not abuse its discretion in granting the State’s
motion to allow Jennifer’s testimony.
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II. Jennifer’s Statement to Police
Defendant next argues that the circuit court erred in admitting
testimony by Detective Nilles that defendant’s sister, Jennifer, believed
defendant had committed the murders. Defendant contends that this
testimony constituted improper and irrelevant opinion evidence. The
State responds first that defendant has waived any claim of error on
this issue, and even if the issue is not waived, the testimony was
admissible to demonstrate the course of the criminal investigation and
defendant’s reaction to Nilles’s comment, and provided context for
explaining defendant’s subsequent flight from police.
We address the State’s waiver argument first. The State cites
People v. Caffey for the proposition that “[w]hen a defendant objects
to certain testimony on direct examination, but then questions the
witness on cross-examination concerning that allegedly inadmissible
testimony, any error is waived for purposes of appeal.” People v.
Caffey, 205 Ill. 2d 52, 113 (2001). In Caffey, a witness testified he
overheard another person name four persons as burglars who had
entered that person’s home. On cross-examination, defense counsel
confronted the witness with the fact that he had not mentioned the
above statement to police when he was first interviewed. On redirect,
the State elicited testimony, over defense objection, that the witness
had told police about this statement during a subsequent interview.
Defense, on recross, attempted to demonstrate that the witness had
consulted with another witness between the two police interviews,
rendering the statement at the second interview suspect. On appeal,
defense counsel argued that admitting evidence of the second
interview was error. This court concluded that defendant had waived
that issue because defendant himself continued to question the witness
regarding the same testimony to which defendant had objected.
Caffey, 205 Ill. 2d at 113.
Defendant argues, however, and we agree, that this case more
closely resembles People v. Brown, 172 Ill. 2d 1 (1996). In that case,
the trial court ruled against the defendant on his motion in limine to
prevent admission of testimony as to defendant’s involvement with
gangs. At trial, the defendant responded to the State’s evidence by
calling witnesses who testified they had never known the defendant to
have been involved with any gang. Brown, 172 Ill. 2d at 48. We
concluded that the defendant did not waive appeal of the court ruling
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on the defendant’s motion in limine. The defendant had only pursued
that line of questioning “in response to the trial court’s adverse
disposition” to his motion. Brown, 172 Ill. 2d at 48. The defendant
“apparently sought to blunt the impact” of the State’s anticipated
evidence. Brown, 172 Ill. 2d at 48.
When a circuit court makes an adverse evidentiary decision,
defense counsel cannot be forced to choose between waiving an issue
for appeal and allowing damaging testimony to go unanswered on
cross-examination. Forcing such a choice undermines counsel’s ability
to fully and vigorously pursue a client’s interests. Accordingly, we
conclude that defendant has not waived this issue and address the
merits of defendant’s claim.
As noted above, it is within the circuit court’s discretion to
determine whether evidence is relevant and admissible. People v.
Morgan, 197 Ill. 2d 404, 455 (2001). A decision to admit evidence,
therefore, will not be overturned unless it is arbitrary, fanciful or
unreasonable. Morgan, 197 Ill. 2d at 455.
The testimony at issue is Detective Nilles’s assertion, during a
conversation with defendant, that “Jennifer thinks you did this.” Also
relevant to this discussion is Jennifer’s testimony, elicited by
defendant, that she had indeed made that statement to Detective
Nilles.
Defendant first asserts that the testimony at issue was improper
opinion testimony. We disagree. Detective Nilles did not testify that
he believed defendant was guilty. Nor did Jennifer testify that she
believed defendant was guilty. Rather, both Nilles and Jennifer
testified to a statement which indicated, at the time the statement was
made, that Jennifer thought defendant had caused the victims’ deaths.
At no time was any testimony offered as to Jennifer’s present opinion
of defendant’s guilt or innocence. Thus, while defendant may arguably
challenge the testimony as to relevance and hearsay concerns, we
reject defendant’s argument that this testimony constituted improper
opinion testimony.
Regarding relevance, we conclude that the evidence was relevant
in that it provided some context for why the investigation was
focusing on defendant. Defendant, in an earlier phone conversation,
had asked on at least one occasion why Detective Nilles was “asking
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him these types of questions.” The information that “Jennifer thinks
you did this,” based on her remembering Katherine telling her about
defendant’s earlier threat, was part of the reason for the questions.
Nilles later testified that he mentioned several things to defendant to
let him know why he was sending detectives to meet him in Los
Angeles, and why it was important that defendant and Nilles speak to
each other in person later. Lastly, the State argues, and we agree, that
Nilles’s testimony that “Jennifer thinks you did this” was relevant for
interpreting defendant’s subsequent actions, such as his unannounced
return to Illinois, and his drive through Wisconsin. The jury could
have found that the fact that defendant knew his sister had told police
about his argument with Katherine, and had indicated she thought
defendant could have committed the murders, made it more likely that
defendant felt the need to flee the police and avoid being arrested.
Defendant’s hearsay arguments are also unconvincing, for many
of the same reasons. An out-of-court statement is admissible if it is
offered for some purpose other than to establish the truth of the
matter asserted and does not constitute hearsay. People v. Banks, No.
103933, slip op. at 16 (February 19, 2010). In this case, the State did
not seek to admit Jennifer’s statements to prove that defendant was
guilty or even to prove that Jennifer thought defendant was guilty.
Instead, Detective Nilles’s testimony provided context for his
investigation and for testimony pertaining to defendant’s state of mind
based on defendant’s response to Nilles’s questioning.
As Nilles’s testimony was not improper opinion, was not irrelevant
and was not inadmissible hearsay, the only question remaining is
whether the testimony was nonetheless unduly prejudicial to
defendant. A court may exercise its discretion and exclude evidence,
even if it is relevant, if the danger of unfair prejudice substantially
outweighs any probative value. People v. Walker, 211 Ill. 2d 317,
337-38 (2004). However, in this case, we conclude that the decision
by the circuit court to deny defendant’s motion in limine and allow
Nille’s testimony was not arbitrary, fanciful or unreasonable, and was,
therefore, not an abuse of discretion. We agree with defendant that
evidence that a witness believes a defendant is guilty may be unfairly
prejudicial. Defendant cites People v. Crump, 319 Ill. App. 3d 538
(2001), as an example. In that case, it was considered reversible error
for a police officer to testify he believed the defendant was guilty.
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However, in this case, as we have noted above, no witnesses testified
as to their belief that defendant was guilty. Further, the prejudice
arising from such testimony does not substantially outweigh its
probative value. In Crump, the testimony was “especially prejudicial
because, as an authority figure, he was informing the jury that it
should believe a portion of the prosecutor’s case.” Crump, 319 Ill.
App. 3d at 544. In contrast, this court has held that the testimony of
a defendant’s sister-in-law that the defendant did not have a compliant
personality and “did whatever he wanted to do” was not overly
prejudicial. People v. Kidd, 175 Ill. 2d 1, 36 (1996).
In this case, although defendant suggests that a jury would find
Jennifer to be “uniquely knowledgeable” about defendant’s character,
we cannot conclude that the indirect reference to Jennifer’s initial
opinion of defendant’s involvement is so prejudicial as to substantially
outweigh the probative value of the statement, as identified above.
Therefore, we hold the circuit court did not abuse its discretion in
admitting the testimony of Detective Nilles.
III. References to Defendant’s “Dangerousness”
During defendant’s trial, the State called as witnesses two airline
employees who had been in contact with defendant in Los Angeles the
day after the murders. During that testimony, the State first
questioned Lisa Stewart, the airline records custodian, as follows:
“[Prosecutor]: Now, if you page forward to 4991 [of the
airline computer records]. What is that sheet called?
[Stewart]: This is the remarks page. The gate agent or
ticket agent has access to the reservation records and can put
remarks in the reservation record.
Q. And were remarks typed in to that sheet, that remark
sheet, at about 7:00 that night?
A. Yes.
Q. And that would be September 29th?
A. Yes, that’s correct.
Q. And what were those remarks?
A. Some of them were abbreviated, but I can read it to
you. It says if passenger checks in, please contact the LAPD
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at (310) 4– excuse me, 646-2255 ASAP. Passenger is very
dangerous.
[Defense Counsel]: Objection. Your Honor.
THE COURT: Sure. Sustained.
[Prosecutor]: There were–
THE COURT: And you’re not to consider that in any
way.”
Later, the State questioned Lynnly Taylor, the ticket agent who
sold defendant an airline ticket on September 29. Taylor twice
referred to the computer records notation. The first time, the State
asked “Was there any information that was put into the ticketing
computer at Southwest?” Taylor responded, “Yes, there was a
comment put in by another Southwest agent, you know, this person
could be potentially dangerous.” Defense counsel did not object to
this response.
Later, in asking Taylor to identify the records so that they could
be admitted into evidence, the State asked, “Can you tell the jury what
that is?” Taylor responded, “It’s a remark in the reservation record for
Eric Hanson, the notation says that the passenger is dangerous.”
Defense counsel objected and the objection was sustained. The court
then gave the following instruction:
“You’re not to consider that for the truth of the matter.
You’re only to consider that only insofar as it explains what
she did in talking to her supervisor, but you can’t consider it
as being a truthful statement just insofar as it explains what
she did. So, again, you can’t consider it for the truth of the
matter.”
Defendant’s argument as to this testimony is that he was denied
due process and effective assistance of counsel as a result of the airline
agents’ mentioning that the Los Angeles police department considered
defendant “dangerous.” Defendant argues trial counsel was deficient
in failing to consistently object to this testimony or in failing to seek
a motion in limine to exclude the testimony. The State responds that
two of the three references to defendant’s dangerousness were cured
by sustained objections accompanied by limiting instructions, which
also avoided any prejudice against defendant for the one reference to
which defense counsel did not object.
-22-
We analyze ineffective assistance of counsel claims under the two-
part test established by Strickland v. Washington, 466 U.S. 668, 80 L.
Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Albanese, 104 Ill. 2d
504, 526-27 (1984). To satisfy Strickland, defendant must first show
that defense counsel’s performance was deficient, in that it fell below
an objective standard of reasonableness. Strickland, 466 U.S. at 688,
80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Defendant must also show
that there is a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
After reviewing the record, we cannot say that counsel’s
performance fell below an objective standard of reasonableness. We
turn first to defendant’s assertion that counsel should have filed a
motion in limine seeking to exclude any reference to the notes
contained in the airline’s computer record. Although defendant argues
that a motion in limine would have prevented the jury from hearing
the testimony, we do not agree that the testimony would have been
excluded.
Had a motion in limine been brought, we agree that the proper
ruling would have prevented reference to the notes found in
defendant’s computer record when testified to by Lisa Stewart, the
records custodian. In reaching this conclusion, we assume that the
circuit court would have exercised its discretion by granting or
denying the motion based on whether the rules of evidence require
exclusion. However, we note that even if the rules of evidence require
exclusion, a circuit court nonetheless has the discretion to deny the
motion and require the moving party to object at trial.
Here, the notes, as referenced by Stewart, had no admissible
nonhearsay purpose. Also, as the court correctly concluded at trial,
the State had failed to meet the requirements to admit the notes under
the business record exception to the hearsay rule.
However, any attempt to completely exclude the notes as they
related to Lynnly Taylor’s testimony would not have been properly
granted. At trial, the State elicited from Taylor testimony on the notes
twice within a short time period. Both mentions were related to how
Taylor later recognized defendant’s name, and informed her actions
following her brief encounter with him. The content of the notes,
although hearsay, were admissible for this nonhearsay purpose.
-23-
Therefore, the hearsay nature of the notes alone would not have
permitted the circuit court to grant a motion in limine.
The only other way defense counsel could have succeeded in a
motion in limine would be if the prejudice to defendant of admitting
the testimony substantially outweighed its probative value. In this
case, the notes regarding defendant’s potential “dangerousness” were
not so prejudicial as to weigh against its admission. This trial centered
around four murders. The jurors had already heard testimony that
police were interested in defendant as a suspect. They were aware that
Nilles had sent detectives to Los Angeles to look for defendant, and
that local police in California were also involved. Jurors likely were
not surprised to learn that, during a murder investigation, the Los
Angeles police department had made a note to consider the suspect
dangerous. We conclude that any prejudice to defendant was minimal,
and the court would have been correct to deny the motion on
prejudice grounds.
Had a motion in limine been filed, then, defense counsel likely
would have succeeded only in preventing one mention of the notes.
Further, the notes would have been later admitted anyway, albeit for
a limited purpose. We cannot say that the decision to object at trial,
rather than file a motion, was so unreasonable as to constitute
deficient performance.
Nor was defense counsel’s performance at trial deficient. Defense
counsel promptly objected to the first mention of these notes, by
Stewart. The objection was sustained and the court properly ruled that
the remarks could not be considered by the jury in any way. Later,
during Taylor’s testimony, the court sustained defense counsel’s
objection to the third mention of the notes and offered a limiting
instruction that the notes were only to be considered “insofar as it
explains what [Taylor] did in talking to her supervisor.” The limiting
instruction could have been clearer, but it was sufficiently clear to
inform the jury that it could consider the statement as evidence for
why the agent called her supervisor, but not as evidence that
defendant was actually dangerous. Thus, although defense counsel
failed to object at the second mention of the notes, doing so would not
have prevented that evidence from being admitted. At best, defendant
could have received a limiting instruction, likely a similar instruction
as given by the court a few minutes later. The failure to object to this
-24-
one mention, when the testimony would have nonetheless been
admitted and when the jury was subsequently instructed as to the
limited purpose for which the testimony could be considered, does not
constitute performance by counsel that fell below an objective
standard of reasonableness. Therefore, we hold that defendant was not
deprived of effective assistance of counsel.
IV. Aggravated Kidnapping Convictions
Defendant next argues that the State did not prove the elements of
aggravated kidnapping. The State’s brief did not directly respond to
defendant’s arguments as to the sufficiency of the evidence and at oral
argument it conceded, without explanation, that the aggravated
kidnapping conviction should be vacated. Because defendant’s
conviction for aggravated kidnapping ultimately merged with the
murder conviction and he was not sentenced on that conviction, and
because defendant challenges the conviction exclusively to argue that
it improperly affected the jury’s sentencing verdict, we need not
consider the sufficiency of the evidence in this case. Instead, without
reaching the merits of defendant’s argument, we accept the State’s
concession and proceed to examine whether, as defendant contends,
the conviction for aggravated kidnapping was improperly considered
by the jury in determining that death was an appropriate sentence.1
The Supreme Court has concluded that “[a]n invalidated
sentencing factor (whether an eligibility factor or not) will render the
sentence unconstitutional by reason of its adding an improper element
to the aggravation scale in the weighing process unless one of the
other sentencing factors enables the sentencer to give aggravating
weight to the same facts and circumstances.” (Emphasis in original.)
Brown v. Sanders, 546 U.S. 212, 220, 163 L. Ed. 2d 723, 733, 126 S.
1
Defendant does not argue that the aggravated kidnapping conviction
requires the jury’s eligibility verdict to be set aside. An invalid statutory
factor will not impair an eligibility finding as long as a separate, valid
aggravating factor supported eligibility. People v. Williams, 193 Ill. 2d 306
362-63 (2000). As the State notes, the jury found two other aggravating
factors supporting eligibility, and defendant does not challenge either of those
factors. Therefore, eligibility is not at issue.
-25-
Ct. 884, 892 (2006).
In Brown, the Court invalidated two of the four eligibility factors
that the jury considered in determining whether a death sentence was
appropriate. Nonetheless, in addition to the “special circumstances”
sentencing factors, the California statute included a sentencing factor
allowing aggravating weight to be given to “ ‘[t]he circumstances of
the crime of which the defendant was convicted in the present
proceeding.’ ” Brown, 546 U.S. at 222, 163 L. Ed. 2d at 734, 126 S.
Ct. at 893, quoting Cal. Penal Code Ann. §190.3 (West 1999). The
Court concluded that this additional factor permitted the jury to
consider all of the same aggravating facts and circumstances presented
under the invalidated factors. Brown, 546 U.S. at 224, 163 L. Ed. 2d
at 735, 126 S. Ct. at 894.
The Illinois death penalty statute has a similar additional
sentencing factor. In capital cases in Illinois, the court shall instruct
the jury “to consider any aggravating and any mitigating factors which
are relevant to the imposition of the death penalty. Aggravating
factors may include but need not be limited to those factors set forth”
in the death penalty statute. 720 ILCS 5/9–1(c) (West 2006). In this
case, the jury was instructed that it should consider “all the
aggravating factors supported by the evidence” even if “such
aggravating factor is not a factor specifically listed in the[ ]
instructions.” Thus, citing Brown, the State argues that the facts upon
which the aggravated kidnapping charge was based could be
considered by the jury to give aggravating weight under this “catch-
all” sentencing factor.
Defendant argues the line should be drawn more narrowly. He
argues that the evidence relating to the kidnapping, that Terrence and
Mary had living, beating hearts at the time they were moved, would
not have otherwise been admitted and, therefore, could not have
otherwise been considered by the jury in the “catch-all” category. We
disagree.
Defendant’s argument suggests that the jury would not have
otherwise heard testimony relating to the aggravated kidnapping
charge had it not been charged or had it been disposed of on a motion
for a directed verdict. Specifically, defendant asserts the jury would
not have heard evidence that defendant moved living persons with
beating hearts. As Brown indicates, “[i]f the presence of the invalid
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sentencing factor allowed the sentencer to consider evidence that
would not otherwise have been before it, due process would mandate
reversal *** .” Brown, 546 U.S. at 220-21, 163 L. Ed. 2d at 733, 126
S. Ct. at 892. However, this did not occur in this case.
Facts adduced at trial relating to the aggravated kidnapping charge
were not extensive. The State elicited on direct examination from Dr.
Harkey only that the cause of death of both Terrence and Mary was
a gunshot wound to the head. The State did not ask about time of
death and did not ask for Dr. Harkey’s opinion on when Terrence and
Mary were moved. Indeed, it was defense counsel who asked Dr.
Harkey about the time of death. Dr. Harkey responded by
acknowledging that Terrence and Mary likely were immediately brain
dead, but that their hearts could have continued beating for seconds
or minutes afterward. The State did not submit Dr. Harkey to any
redirect examination.
The State, however, did elicit testimony from several witnesses
supporting its theory that Terrence’s and Mary’s bodies had been
moved from the house where they were shot to the Tsao home. Thus,
the jury was presented with evidence that Terrence and Mary were
shot in their home. The jurors were presented with evidence, elicited
by the defendant, that Terrence’s and Mary’s hearts may have been
beating for, at most, a couple of minutes and that they were at some
time moved to the Tsao home.
As for argument, we note that in closing argument of the guilt
phase of defendant’s trial, the State did not reference the aggravated
kidnapping. The State also failed to argue aggravated kidnapping
during its initial argument of the eligibility phase, other than to say:
“As to Mary and Terry, aggravated kidnapping, was that
committed during the course of a felony? He shot them and he
moved them to the other house. Why? It’s a continuing course
of conduct, one act. He did not want the two scenes to be
connected. That is why he shot them and brought them over
to the other house. That murder was committed in the course
of another felony. Mary and Terry were both killed during the
course of another felony, aggravated kidnapping.
***
That the murders of Mary and Terry Hanson were
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committed in the course of an aggravated kidnapping. ***
They were killed in their bed, and they were transported over,
with one purpose, to cover up the crime scene. It was part and
parcel of the whole continuing course of conduct.”
Defense counsel then argued that a person cannot be kidnapped
when they are dead. Counsel referred to the testimony by Dr. Harkey
that Terrence and Mary were already brain dead when they were
moved. In rebuttal argument during the eligibility phase, the State then
argued that Dr. Harkey did say Terrence’s and Mary’s hearts could
have still been beating, but acknowledged that he did not know
whether this was so, and did not know the exact time the bodies were
moved.
We cannot say that the presence of the invalid sentencing factor
allowed the sentencer to consider evidence that would not otherwise
have been before it. The jury was presented with the entire sequence
of events, from the shooting to the cleanup to transporting of the
Hansons to the Tsao home. The jury was entitled to give those facts
and circumstances aggravating weight under the “catch-all” sentencing
factor. Therefore, we hold that the improper conviction for
aggravated kidnapping does not require reversal of defendant’s death
sentence.
V. Testimony in Aggravation
During the sentencing phase of defendant’s trial, defendant called
Roger Cowan, a former prison warden, to testify as to what defendant
might expect to experience if he were sentenced to natural life in
prison. During the course of that examination, the following exchange
occurred:
“[Defense counsel]: Now, let’s say you have someone who
becomes–or someone who perhaps tries to stab another
inmate or someone who tries to take out a guard, certainly
there’s something more penal than something like taking away
their radio. What would Menard do with a person like that?
[Witness]: Well, yes, the grade system is to deal with the
minor rule infractions. Any major rule infraction he would be
placed in segregation and for a lack of another term, that a jail
inside the jail, the segregation unit, where he would be locked
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up 24 hours a day. And any time he comes out of his cell, he’d
be escorted; and there would be a number of restrictions that
would be imposed.”
On cross-examination, the State referenced this inquiry and asked
Cowan about three specific instances where an inmate killed a
corrections officer at a maximum security prison. That exchange went
as follows:
“[Prosecutor]: [Defense counsel] mentioned something.
He said let’s say someone takes out a guard, do you recall that
question?
[Cowan]: Takes out a guard?
Q. Yeah.
A. Assaults an employee or guard?
Q. Right. And his words were take out a guard.
A. Okay. Yes.
Q. And you were the Captain of Corrections; is that
correct? You held that office?
A. Yes, I did.
Q. And that was for–between 1981 and 1986 at Menard,
correct?
A. Yes, it is.
Q. And between 1981 and 1986, would you tell the jury
how was it that a Correctional Officer Joseph Cushman got
killed?
A. Actually Joseph Cushman was a guard at a medium
security facility called a farm annex. And an inmate struck him
in the head with an ax and killed him at the farm annex.
Q. How about Cecile Harvison who got killed in 1984?
A. In 1984 Officer Harvison was killed coming off of the
four gallery in the south cell house. An inmate charged out of
his cell while the evening dining room doors were open and he
attacked Officer Harvison with a knife and stabbed him to
death at the four gallery grill door.
***
Q. And you’re probably familiar with the most recent
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[killing of an officer] in 2007, correct?
A. No. I’m not that familiar with that; but now that you
say that, I did read where there was an incident at Stateville,
yes.”
Defendant argues that this testimony was irrelevant and should not
have been admitted. Defendant acknowledges that counsel did not
object to this testimony at trial. Therefore, he asks this court to review
the record for plain error or, in the alternative, to hold that defendant
was denied effective assistance of counsel.
The plain-error doctrine allows a reviewing court to consider
unpreserved error when (1) a clear or obvious error occurs and the
evidence is so closely balanced that the error alone threatened to tip
the scales of justice against the defendant, regardless of the
seriousness of the error, or (2) a clear or obvious error occurs and that
error is so serious that it affected the fairness of the defendant’s trial
and challenged the integrity of the judicial process, regardless of the
closeness of the evidence. People v. Piatkowski, 225 Ill. 2d 551, 565
(2007). The first step in this analysis, therefore, is to determine
whether a clear and obvious error occurred.
The ostensible purpose of defendant’s questioning of Cowan was
to demonstrate that defendant would not be a danger to others if he
were sentenced to natural life in prison rather than be given a death
sentence. Elsewhere in Cowan’s testimony, he stated that there have
been only three instances where an inmate has gotten outside the wall
of Menard state prison. Cowan also noted that each of these three
individuals had been apprehended. From this testimony, jurors could
infer that defendant likely would not escape to again pose a danger to
the public. From Cowan’s testimony as to the penalties for “taking
out” a guard, the jury was to infer that defendant would not be a
danger to prison employees, either.
For this reason, the State argues that defendant opened the door
to its questioning Cowan about specific instances of inmate violence.
The purpose of the State’s questioning was to clarify how frequent an
occurrence it is for an inmate to kill a corrections officer even when
there are strict punishments for doing so. Therefore, the State argues
there was no error and, consequently, no plain error. We agree with
the State that admission of this testimony did not constitute error.
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Although it is error for the State to speculate as to the possibility
that defendant will commit future crimes (People v. Edgeston, 157 Ill.
2d 201, 241 (1993)), we conclude that the State made no such
speculation in this case. On direct examination, defendant did not seek
to demonstrate that he, himself, would not be prone to violence.
Rather, Cowan’s testimony concerned general statements that
regulations and the threat of further punishment are in place to
provide incentives for inmates to refrain from violence. Likewise, the
State’s questioning emphasized that such regulations will not work
under all circumstances. The State refrained from questioning Cowan
about whether defendant himself was likely to harm prison officers.
Rather, it limited itself merely to demonstrating that the threat of
stricter confinement alone does not always prevent inmate violence.
Additionally, the State made no reference to defendant’s future
dangerousness in closing argument. Based on the generalized nature
of the questioning and the lack of any argument as to defendant’s
future dangerousness, we conclude that it was not a clear and obvious
error for the court to allow Cowan’s testimony to be admitted.
Finding no error, our plain-error analysis ends here.
Similarly, we find no merit in defendant’s ineffective assistance
claim. As noted above, to demonstrate ineffective assistance of
counsel, defendant must show that defense counsel’s performance was
deficient, in that it fell below an objective standard of reasonableness.
Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.
Defendant must also show that there is a reasonable probability that,
but for counsel’s deficient performance, the result of the proceeding
would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d
at 698, 104 S. Ct. at 2068. Having concluded that it was not error for
the court to allow Cowan’s testimony, the failure to object to this
testimony cannot constitute deficient performance and cannot result
in prejudice to defendant. Thus, we hold that defendant’s ineffective
assistance of counsel claim must also fail.
VI. Fifth Amendment Challenge
Defendant next argues that the circuit court’s instruction to the
jury that recognized defendant’s right to remain silent and not submit
to an interview by a prosecution psychologist penalized defendant by
indicating that mitigation could have been rebutted had defendant
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agreed to such an interview. The State responds that this issue has
been forfeited because defendant failed to object to the instruction and
affirmatively contributed to the instruction’s content.
During the closing arguments of the sentencing phase of
defendant’s trial, counsel for defendant referenced the testimony of
Dr. Marva Dawkins. Dawkins testified as an expert in clinical and
forensic psychology and gave the opinion that defendant had attention
deficit hyperactivity disorder. Dawkins suggested that although prison
life would be difficult for defendant, prison structure would control his
behavior. In referencing this testimony defense counsel argued that
Dawkins’ testimony was “unrebutted” and “unchallenged by any other
expert.” Counsel also argued that the State could have hired an expert
and that “Eric would have had to subject himself to those interviews.”
Counsel’s statements prompted several objections by the State, which
were overruled. The State requested a sidebar, where the parties
discussed whether the State could have required defendant to give an
interview to a prosecution psychologist. The State cited People v.
Lee, 196 Ill. 2d 368 (2001), which held that a defendant in a capital
case may not be required to submit to an interview by a State expert.
People v. Lee, 196 Ill. 2d at 382. 2 The circuit court agreed to instruct
the jury that defendant could not be forced to submit to an interview.
Defense counsel then asked the court to also instruct the jury that the
State could have hired an expert to review Dawkins’ findings, but that
the State chose not to do so. The circuit court agreed and instructed
the jury as follows:
“Ladies and gentlemen, good afternoon. I’m just going to
clarify one issue for you. Mr. Hanson has a right at every stage
of this proceeding under the Illinois and United States
constitutions to remain silent.
As part of that right, I need you to be aware that I–the
Court could not order him to agree to any interview or testing
by an expert on behalf of the State. The State did not make
2
At the time Lee was decided, this court’s Rule 413, governing discovery,
did not apply to death penalty proceedings. Although Rule 413 was soon
after amended to include such cases, the rule still does not require a
defendant to submit to a psychiatric examination.
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such a request in this case, but you need to be aware that I
could not have ordered him to do so, and he would have had
no obligation to agree to an interview or test by an expert on
behalf of the State. That’s his right. We’ve talked about it
many times.
An expert could have reviewed reports and records in this
case. The State chose not to do that and they may be
discussing that in their argument or not as they see fit.
In any event, I want you to be aware that that’s the case.
So there is no misunderstanding, again, I’m not at all saying
that either side did anything wrong in this case, and certainly
Mr. Hanson was never asked to submit, but under the law he
has no right to submit, nor could I order him to submit to any
interview or testing by an expert on behalf of the State. Thank
you.”
Defendant did not object to this instruction. During the sidebar
preceding the instruction, the circuit court asked if defendant had any
objection to informing the jury that defendant could not be required
to testify. Defense counsel responded, “[o]nly with the caveat, your
Honor, as long as the jury understands that they [the State] were
allowed–were given the documents, the same documents that Dr.
Dawkins had *** and that their expert could have given an opinion
based on the records aside from any interview with Mr. Hanson.”
Defendant’s “caveat” was satisfied when the court instructed the jury
that the State could have hired an expert to review the documents.
Therefore, we conclude that defendant has forfeited this issue.
Anticipating the State’s forfeiture argument, defendant
acknowledges that “the error was not as well preserved as it might
have been had counsel made the most appropriate objections.” Thus,
defendant first argues that application of the waiver rule is less rigid
where the basis of the objection is the trial judge’s conduct, a doctrine
referred to as the Sprinkle doctrine. See People v. Nevitt, 135 Ill. 2d
423, 455 (1990). Defendant’s reliance on Nevitt is misplaced. As this
court recently explained in People v. McLaurin, relaxing the waiver
rule is warranted when the trial judge has overstepped its authority in
the presence of the jury or when counsel is effectively prevented from
objecting as any objection would have “fallen on deaf ears.” People v.
McLaurin, 235 Ill. 2d 478, 488 (2009).
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In this case, however, the circuit court first informed both parties
of its intended instruction during a sidebar outside the presence of the
jury. Counsel had ample time to argue its point that the State could
have had an expert review Dawkins’s findings. Indeed, it did argue
that point and succeeded in having the court include a statement in its
instruction reflecting defendant’s position. For this same reason, we
cannot say that any objection would have “fallen on deaf ears.” The
circuit court incorporated defendant’s suggestion into its instruction,
and defendant otherwise made no objection to the content of the
instruction. Therefore, we decline to relax the forfeiture rule in this
case based on Sprinkle.
Defendant argues, in the alternative, that this court should review
the issue for plain error. As discussed above, plain error analysis first
requires us to examine whether a clear and obvious error occurred.
Defendant argues that the instruction was error in that it penalized
defendant for exercising his Fifth Amendment rights by letting the jury
believe that defendant had obstructed the State’s efforts to rebut
defendant’s mitigation arguments.
We find no error in the court’s instruction. First, the instruction,
as delivered, was a correct statement of the law. During the
sentencing phase of a capital case, a defendant is not required to
submit to examination by the State. In clarifying this to the jury, the
circuit court corrected defense counsel’s prior statement that
suggested that the State could have hired its own expert and that
defendant would have had to subject himself to those interviews. The
court’s statements regarding the State’s options were also a correct
statement of the law. The State could have hired an expert to review
the findings of Dr. Dawkins. 134 Ill. 2d R. 413(c). The State chose
not to do so.
Defendant argues that People v. Szabo, 94 Ill. 2d 327 (1983), and
People v. Mulero, 176 Ill. 2d 444 (1997), support his argument that
he was penalized for exercising his fifth amendment rights. The
defendant in Szabo was convicted of murder. During the sentencing
phase of his trial the defendant testified in support of mitigation.
Specifically, he explained to the jury how bad he felt about what he
had done, and expressed remorse that he had agreed to go along with
his co-conspirator’s plan. Szabo, 94 Ill. 2d at 358. On cross-
examination, the prosecution confronted the defendant with his failure
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to express any remorse to police after he had been arrested. The
defendant did not admit to police that it was his co-conspirator’s idea
to commit the murder. In finding error in the State’s cross-
examination, this court concluded “[t]here is no question that such
remarks are fundamentally unfair and amount to a deprivation of due
process in allowing an arrested person’s silence to be used to impeach
an explanation subsequently offered at trial.” Szabo, 94 Ill. 2d at 359.
Similarly, the defendant in Mulero, convicted of murder, testified
at her sentencing hearing in mitigation that she confessed and pleaded
guilty because she knew her actions were wrong and was remorseful.
Mulero, 176 Ill. 2d at 459. On cross-examination, the prosecution
raised the issue of a motion to suppress her confession. In that motion,
the defendant alleged that she confessed because the police had
tricked her and did not mention anything about remorse. Mulero, 176
Ill. 2d at 460-61. The State then used that motion to suppress to
suggest that the defendant had pleaded guilty to avoid a harsher
penalty and not because she felt guilty about what she had done.
Mulero, 176 Ill. 2d at 461. This court found error with the State’s
cross-examination. It concluded that “[t]he sentencing jury was in
effect told that it could consider defendant’s exercising of her
constitutional right to remain silent as an aggravating factor against
her.” Mulero, 176 Ill. 2d at 463. This tactic, if allowed, would have a
“chilling effect” on a defendant’s decision to file a motion to suppress
or otherwise exercise her fifth amendment rights. Mulero, 176 Ill. 2d
at 463.
We find Szabo and Mulero to be distinguishable. In each of these
cases, the defendant’s silence was directly used against him or her on
cross-examination. The prosecution in each case specifically referred
to the defendant’s silence to infer the defendant was pretending to be
remorseful to avoid a death sentence. However, the State did not ask
the jury to make such an inference in this case. It did not ask
defendant about any postarrest silence. It did not confront him with a
refusal to submit to a psychiatric exam, as the State never requested
one. The only statement presented to the jury about defendant’s right
to remain silent was presented by the court.
Rather, in this case the judge in no way suggested that the
defendant interfered with the State’s effort to perform a psychological
evaluation. The court’s instruction made clear that although defendant
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was not required to submit to an interview, the State could have
requested a voluntary interview. The court noted that State did not
submit such a request. Nor did the court imply that defendant
obstructed any other efforts. The court was clear that the State could
have asked another expert to review the documentation gathered by
Dawkins and noted, again, that the State declined to do so. Thus, the
instruction clearly noted that the State did not make any effort to hire
an expert.
This instruction, taken as a whole, supported most of defense
counsel’s argument that Dawkins’s testimony went unchallenged.
With the one exception of the statement suggesting that defendant
“would have had to subject himself” to an interview, defense counsel’s
statements were proper. The instruction allowed the jury to note that
although the State could have hired an expert or requested defendant
to voluntarily submit to an interview, it did not take the opportunity
to do so. Whereas in Szabo the jury was expressly told that the State’s
efforts were hampered by the defendant’s exercise of his fifth
amendment rights, the jury here was instructed that the State made no
such efforts to produce evidence in rebuttal. Therefore, we hold that
the circuit court did not err in giving the instruction as to defendant’s
right to remain silent.
VII. Defendant’s Request for Subpoenas to Collect Data
During the sentencing phase of defendant’s trial, defendant filed
a motion to declare the death penalty unconstitutional, which included
a discovery request to subpoena records that would “demonstrate the
empirical basis for [defendant’s] contention that *** the Illinois Death
Penalty Act fails to sufficiently narrow the class of persons eligible for
the death penalty.” The circuit court denied defendant’s request.
A subpoena is a judicial process, and the circuit court determines
whether the subpoena is unreasonable or oppressive. People ex rel.
Fisher v. Carey, 77 Ill. 2d 259, 265 (1979). Thus, the decision to
issue a subpoena is reviewed for abuse of discretion. People v. Jones,
295 Ill. App. 3d 444, 450 (1998).
Defendant contends that this court’s opinion in People v. Ballard,
206 Ill. 2d 151 (2002), indicated a need for empirical analysis of
whether eligibility for the death penalty is properly narrowed by
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aggravating factors. Defendant argues that his subpoena request was
an attempt to avoid the criticism that the defendant in Ballard faced,
which was an inability to show his claims were empirically correct.
We cannot accept defendant’s interpretation of Ballard as
providing the basis for requiring the circuit court to allow subpoenas
to conduct a statewide review of death penalty cases. Defendant in
this case requested discovery of “all information on these issues from
records or files from the various prosecutor’s offices and public
defenders’ offices in Illinois.” The information sought by defendant
would include records not only of death penalty cases but of non-
death-penalty murder cases as well. Issuing a subpoena requiring such
discovery would be unreasonable and oppressive. Broad discovery of
this type becomes even less reasonable and more burdensome when,
under defendant’s interpretation of Ballard, one may presume every
defendant would be entitled to the same remedy. Thus, the time and
effort spent in complying with subpoenas would be multiplied as each
defendant conducted his own analysis, which may ultimately differ
from the analyses of other defendants. This is not a proper use of the
court’s subpoena power.
In addition to creating a burdensome scenario that could possibly
lead to incomplete or inconsistent results, defendant’s interpretation
misreads the court’s intent in Ballard. This court’s decision in Ballard
was not an invitation for defendants to seek to use the judicial process
as a means of compelling the collection of empirical data on the death
penalty. Rather, Ballard noted that defendant provided no evidence
“ ‘ “on this record, or through sources of which we might take judicial
notice, that his claims are empirically accurate, or that, if they were
correct, this would require the invalidation of the death penalty law.” ’
*** [Citation.]” Ballard, 206 Ill. 2d at 200. Setting aside for a
moment the second half of that statement, that there is no certainty
that any empirical evidence would even require invalidating the death
penalty, Ballard required only that if a defendant were to make an
empirical claim, he need provide some support. Ballard did not
suggest, however, that it would be appropriate for a defendant to
request that the court compel production of possibly thousands of
documents from offices throughout the state. Under Ballard,
defendants may present empirical evidence, but are not entitled to
require the circuit court to issue unreasonable discovery orders.
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Therefore, we conclude that the circuit court did not abuse its
discretion in denying defendant’s subpoena request.
VIII. Eighth Amendment Challenge
Defendant next argues that the Illinois death penalty statute is
unconstitutionally excessive in that it fails to satisfy its legislative
purposes of incapacitation, deterrence and retribution. Defendant cites
as support the concurring opinion of Justice Stevens in the recent
Supreme Court case Baze v. Rees, 553 U.S. 35, 170 L. Ed. 2d 420,
128 S. Ct. 1520 (2008).
This court discussed in detail the analysis required by the eighth
amendment in capital cases in People v. Ballard, 206 Ill. 2d at 194-
200. Although Ballard did not directly address the concerns raised by
defendant in this case, the analysis adopted in Gregg v. Georgia, 428
U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976), and its progeny
remains the framework for determining whether a state’s death penalty
statute is unconstitutionally excessive. Whatever the merits of Justice
Stevens’s arguments regarding incapacitation, deterrence and
retribution, the full Court has not incorporated such factors into its
jurisprudence as constitutionally significant. We decline to expand the
Court’s analysis, and we suggest that at this time defendant’s
arguments would be more appropriately directed to the legislature.
IX. Apprendi
Defendant lastly contends that the Illinois death penalty statute, as
amended, violates the principles announced in Apprendi v. New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000),
because the statute does not require the State, at the second stage of
the death sentencing hearing, to prove beyond a reasonable doubt that
aggravating factors outweigh mitigating factors. This court has
repeatedly rejected this argument. People v. Harris, 225 Ill. 2d 1, 50
(2007); People v. Thompson, 222 Ill. 2d 1, 52-54 (2006); People v.
Mertz, 218 Ill. 2d 1, 93-94 (2005). Defendant has not persuaded us to
overturn these decisions.
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CONCLUSION
As to defendant’s alleged guilt-phase trial errors, we conclude: (1)
the circuit court did not misapply the forfeiture by wrongdoing
doctrine and that it properly admitted the testimony of Jennifer
Williams; (2) the circuit court did not err in admitting the testimony
of Detective Nilles referencing Jennifer Williams’s initial opinion that
defendant was involved in the murders; (3) the trial court did not err
in its treatment of the airline’s computer records indicating that
defendant was dangerous; and (4) defendant’s convictions for
aggravated kidnapping must be vacated.
Although we conclude that defendant’s aggravated kidnapping
convictions must be vacated, we conclude that the erroneous
convictions did not improperly affect the sentencing phase of
defendant’s trial. We further conclude that no error occurred during
the sentencing phase with regard to the testimony of former Warden
Cowan or the instruction given to the jury regarding defendant’s fifth
amendment rights.
Lastly, we conclude that the circuit court did not abuse its
discretion in denying defendant’s subpoena requests and reaffirm that
the Illinois death penalty statute conforms to the Supreme Court’s
eighth amendment analysis and does not run afoul of Apprendi v. New
Jersey. Defendant has raised no issue that requires a new trial as to
either guilt or sentencing. Consequently, we vacate defendant’s
aggravated kidnapping convictions but affirm the circuit court
judgment in all other respects.
For the foregoing reasons, the judgment of the circuit court of
Du Page County is affirmed in part and vacated in part. The clerk of
this court is directed to enter an order setting Tuesday, November 9,
2010, as the date on which the sentence of death entered in the circuit
court is to be imposed. The defendant shall be executed in the manner
provided by law. 725 ILCS 5/119–5 (West 2008). The clerk of this
court shall send a certified copy of the mandate in this case to the
Director of Corrections, the warden of Tamms Correctional Center,
and the warden of the institution where defendant is now confined.
Affirmed in part and vacated in part.
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