NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion to
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anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The official copy of the following opinion
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sheets following final action by the Court.
Docket No. 78886--Agenda 5--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. SHERRELL TOWNS,
Appellant.
Opinion filed December 19, 1996.
JUSTICE FREEMAN delivered the opinion of the court:
Following a trial in the circuit court of Madison County, a
jury found defendant, Sherrell Towns, guilty of five counts of
first degree murder. 720 ILCS 5/9--1(a) (West 1992). That same jury
found defendant eligible for the death penalty based on the
aggravating factor that he killed two or more individuals. See 720
ILCS 5/9--1(b)(3) (West 1992). It further concluded that there were
no mitigating factors sufficient to preclude the imposition of the
death penalty. Accordingly, the trial judge sentenced defendant to
death on each count. The sentences have been stayed pending direct
appeal to this court. Ill. Const. 1970, art. VI, ยง4(b); 134 Ill. 2d
R. 603. For the reasons that follow, we affirm both the convictions
and the sentences.
BACKGROUND
This case involves the execution-style murder of five men in
Madison, Illinois. The State's primary evidence against defendant
came from defendant's own admissions to both his acquaintances and
to police and can be summarized as follows. On the evening of
November 17, 1993, defendant, who was accompanied by Remon Williams
and Michael Coleman, drove his dark green van to the trailer home
of David Thompson. Thompson's trailer was widely known in the
community as a place where drugs could be purchased. The trailer
was surrounded by a chain fence, and its windows were secured with
iron bars. Thompson carried the only key to the trailer and had
complete control over who entered the premises. In fact, it was his
policy to admit only those people whom he knew.
Defendant and his cohorts gained entry to the trailer because
Coleman knew Thompson. Defendant and Williams sat in the living
room while Coleman went into the kitchen. After a couple of
minutes, Coleman called out to someone who was in a back room. When
that person came out, defendant, Coleman, and Williams all
brandished guns. Defendant had a 9 millimeter pistol, and Coleman
and Williams both carried .380-caliber handguns. According to
defendant, three other men besides Thompson were in the trailer at
the time.
All four of the trailer occupants were then ordered to get
down on the floor. One of the men, however, reached for defendant's
gun, and defendant shot him in the chest. Although the man "went
down," defendant stated that he did not die from the wound because
he continued to talk the entire time they were there. Defendant and
his accomplices then demanded that the men give them all of their
money, and defendant and Coleman searched the trailer. When no
money was found, Thompson told them that it was kept by a relative
in a neighboring trailer.
Defendant bound two of the men with duct tape and accompanied
Coleman and Thompson to the trailer next door. According to
defendant, a man, later identified as Jeff Mosby, responded to
their knock on the door. Thompson asked him to get the money, but
Mosby "just kind of stood there." Defendant and Coleman pushed
their way into the trailer and ordered Mosby to get down on the
floor. Instead of complying, Mosby remained standing, with what
defendant characterized as a "what's up type look on his face."
Defendant also acknowledged that Mosby acted as if he did not
really know what they were talking about. Mosby was again told to
get down on the floor, and defendant shot him when he remained
standing. The subsequent search of Mosby's trailer revealed no
money. When defendant and Coleman asked Thompson why there was no
money in the trailer, Thompson told them that Mosby's aunt did not
trust Mosby with the money because he "smokes dope," and that she
must have put it in the trunk of her car.
Upon their return to Thompson's trailer, defendant bound
Thompson with duct tape. At that time, defendant, Coleman, and
Williams decided to leave. As they started to depart, they saw a
car come down the road so they returned to the trailer. Defendant
and Williams asked Coleman what he wanted to do because "these guys
[knew his] face," but did not know either of them. Coleman
indicated to them that they should just leave them alone. But he
then changed his mind, saying, "[T]hey know me. Let's do them."
Defendant claimed that the four men in Thompson's trailer were then
shot by Williams, who used defendant's 9 millimeter pistol. As the
three were leaving Thompson's trailer, defendant saw a car pull
into Mosby's driveway.
Thirteen-year-old Candice Branch saw defendant and two other
men in front of Thompson's trailer while she was walking home from
a school program at approximately 10 p.m. on November 17. She heard
one of the men say "let's go do it," or "lets go smoke these."
Branch became frightened and immediately ran home.
Kimberly Fulton returned to the trailer home she and her
children shared with Mosby at approximately 10 p.m. on the day in
question. As she walked to her trailer, Fulton noticed three men
leave Thompson's trailer. The three men then sped away in a dark
green van which had been parked in front of Thompson's trailer.
Fulton entered her trailer and found Mosby's body sprawled across
the floor. Mosby had been shot once, with the bullet passing
through his left arm and into his chest. When Fulton asked her
children what had happened, they responded that the "boys next
door" had done it. Fulton then went to the trailer next door and
saw that the front door was slightly ajar. Fulton returned to her
trailer and dialed 911.
When the police arrived, they discovered Cedric Gardner,
Thompson's roommate, lying in Thompson's kitchen. Gardner's hands,
feet, and mouth had been bound with duct tape, and he had been shot
once in the head. Police also found the body of Bedford Jennings,
bearing a similar wound and bound in similar fashion. Thompson's
body was also similarly taped, but it appeared as though he had
pulled the tape apart from his hands. His body was found in the
front foyer of the trailer. The fourth victim, Marion Jennings, who
had not been bound, was shot once in the right side of the head and
once in the chest. All of the victims were dead except for Gardner
and Mosby, who were taken to a hospital where they were later
pronounced dead. Police retrieved various items of physical
evidence from both Thompson's and Mosby's trailers, including the
duct tape, bullet casings, and papers.
Based on statements given by Fulton and Branch, police sought
the occupants of the dark green van. On the day after the murders,
police stopped defendant while he was driving a dark green van. At
that time, police merely ticketed defendant for driving on a
suspended license. Defendant accompanied police to the station for
an interview after the traffic stop and answered their questions
regarding his whereabouts on the night of the murders. He told
police that he had spent the day with his daughter and then had
gone to his girlfriend's home at 10 p.m. After checking on
defendant's alibi, police informed him that his girlfriend's
statement was inconsistent with his. Defendant then told the
officers that he had met with Michael Coleman and two other men at
about 9 p.m. The foursome traveled to East St. Louis where they
remained until 11 p.m. Defendant then went to his girlfriend's home
where he spent the night. Police eventually released defendant from
custody because they did not have enough evidence to charge him
with the crimes. Defendant left the area to visit a sick relative
in Mississippi on November 21, 1993.
Meanwhile, police conducted forensic examinations of the
physical evidence found at the scene of the crimes. The bullets
found at both trailers were identified as 9 millimeter, and all
were fired from the same weapon. Defendant's fingerprints were
discovered on the duct tape as well as on the papers found in
Mosby's trailer. On November 22, 1993, police filed a five-count
information against defendant charging him with the murders.
According to the information, all five of the victims died from
gunshot wounds to the head.
Detectives Scott Sandidge and Rick Weissenborn located
defendant in Cahoa County, Mississippi, and questioned him at the
county jail during the afternoon of November 24, 1993. After
defendant had been advised of his Miranda rights, the officers
showed him the information which charged him with the five murders.
Defendant told the officers that he "didn't kill no five people."
Eventually, defendant admitted his involvement in the murders as
detailed above. Defendant told the officers that he would "stand up
for what [he] did." However, he maintained that he had only shot
two of the five victims. During the statement, the detectives
showed defendant the criminal information which had been filed in
the case. After reading it, defendant stated that it contained an
error because Jeff Mosby had not been shot in the head but, rather,
the chest. At trial, both detectives indicated that such
information had not been released to the general public.
Defendant testified in his own behalf at trial. He denied
making any of the statements to the police and denied any
involvement in the crimes. Although he admitted that he had rented
a dark green van during the time in question, defendant denied
using it during the evening hours of November 17, 1993. Instead,
both he and Michael Coleman drove Coleman's car to a night club in
St. Louis. At approximately 10 p.m., they went to the home of
Coleman's uncle and met Eric Coleman, Christopher Whitehead,
Yulanda Allen, and a few of her friends. He told Allen that he
would stop by her home later. Defendant and his friends then went
to a fast food restaurant and bought some liquor. He arrived at
Allen's home around 11 p.m.
In rebuttal, both Marshall Bradley, defendant's cousin, and
Katina Foots, defendant's acquaintance, testified that they heard
defendant admit his involvement in the crimes in a manner
consistent with his statement to police. Defendant made the
statements two days after the murders. Both witnesses stated that
defendant referred to the children who had been in Moseby's trailer
at the time and wondered if they could identify him. Defendant also
stated that he would have shot the children, but did not do so
because he did not think they would be able to identify him.
Following closing arguments and instructions, the jury found
defendant guilty on all five counts of murder. After the first
stage of the sentencing hearing, the jury found defendant eligible
for the death penalty, as the defendant was over 18 years of age
and had been convicted of murdering at least two individuals. At
the second stage of the hearing, the State presented the testimony
of several relatives of the victims as well as evidence of
defendant's previous convictions for delivery of a controlled
substance and aggravated assault. The State also presented the
testimony of two witnesses who were incarcerated in the county jail
with defendant prior to trial. Neither man heard defendant express
any remorse for the crimes. In fact, one of the men, Michael
Lockett, heard defendant admit to the shootings and state that "he
would live to kill again, look how many [he'd] gotten away with."
Defendant presented evidence in mitigation consisting of the
testimony of several relatives and friends who related that
defendant had been brought up by his maternal grandmother and
various members of his extended family. Although defendant had been
sick at birth, he overcame his illness and developed into a healthy
child. The witnesses stated that defendant helped around the home
with chores and was obedient. Each testified that defendant enjoyed
a warm relationship with his three children, particularly his young
daughter.
At the conclusion of the second stage of the sentencing
hearing, the jury found no mitigating circumstances sufficient to
preclude imposition of the death penalty. Accordingly, the circuit
court sentenced defendant to death for each of the five murders.
The circuit court later denied all post-trial relief sought by
defendant.
ANALYSIS
I. Trial Issues
Improper Cross-Examination
Defendant first argues that the circuit court denied him a
fair trial by allowing the State to engage in improper cross-
examination. Specifically, defendant points to the following
question posed to him by the prosecutor immediately after defendant
testified that talking to the police can get a person killed:
"Q. Let's talk about what will get you killed.
Leaving witnesses alive can do that.
MR. HAWKINS [defense counsel]: Objection, Your
Honor.
THE COURT: Sustained."
Defendant contends the prosecutor later returned to the improper
theme of leaving witnesses alive by referring to defendant's direct
examination. At that time, the prosecutor attempted to ask
defendant about his concern "that witnesses are left around
afterwards--." The prosecutor did not complete the question because
the circuit court sustained defense counsel's objection. In an
unrelated matter, defendant also claims that the prosecutor also
improperly asked him to explain "why police officers with forty
years of experience would lie about a statement [defendant had]
made."
The State asserts that each of these claims has been waived
because they were not contained in either defendant's pro se post-
trial motion or the post-trial motion prepared by his attorney. We
agree. This court has consistently recognized that the failure to
raise an issue in a written motion for a new trial prevents raising
the issue on appeal. See People v. Redd, 173 Ill. 2d 1, 27 (1996);
People v. Pasch, 152 Ill. 2d 133, 173 (1992); People v. Enoch, 122
Ill. 2d 176, 186 (1988). Thus, we must determine whether
defendant's waiver may be excused under plain error.
Under the plain error doctrine, courts may address a waived
issue if the evidence is closely balanced or if the error affects
substantial rights. 134 Ill. 2d R. 615(a); People v. Carlson, 79
Ill. 2d 564 (1980). Neither prong of the exception is satisfied in
this case. First, the evidence of defendant's guilt was
overwhelming. Defendant himself admitted his involvement in the
crimes to police officers and acquaintances. Moreover, as noted
above, physical and circumstantial evidence presented at trial was
substantial and uncontradicted. Second, we do not believe that any
of the alleged errors affect a substantial right or call into
question the integrity of the proceeding. We note that two of the
three remarks were the subject of a contemporaneous objection at
trial. In our view, the trial judge's prompt sustaining of the
objection adequately prevented any error from reaching
constitutional proportions. See People v. Hobley, 159 Ill. 2d 272,
315 (1994).
Denial of Appointment of New Counsel
for Post-Trial Proceedings
Defendant next asserts that the circuit court erred by not
appointing a new attorney to argue his pro se post-trial motion
which alleged that his trial counsel was ineffective. The record
reveals that defense counsel had filed a post-trial motion for a
new trial at the conclusion of the sentencing hearing. Shortly
thereafter, defendant filed a pro se "Motion For a New Attorney,"
alleging that defense counsel had filed the motion for a new trial
without first consulting or seeking defendant's approval. Defendant
further complained that his counsel's motion was inadequate to
preserve "all issues of error" for appellate review. Finally,
defendant alleged that his counsel had been ineffective throughout
the proceedings and requested that the court appoint a new attorney
to represent him in the post-trial proceedings. The court denied
defendant's pro se motion for a new attorney on April 19, 1995.
On that same day, immediately after the circuit court denied
defendant's "Motion For a New Attorney," the court allowed
defendant to file a pro se "Amended Post-Trial Motion." In that
motion, defendant raised numerous allegations concerning
prosecutorial misconduct, judicial bias, and ineffective assistance
of counsel. Specifically, defendant contended, among other things,
that his attorney failed to adequately prepare for trial because he
did not (i) investigate relevant facts and interview "relevant
witnesses," (ii) "utilize available means of discovering
exculpatory evidence available to the State or to discover the
State's case," (iii) explore plea bargaining opportunities, (iv)
have certain physical evidence (i.e., the duct tape and the papers)
examined by an independent forensic expert after the court allowed
the appointment for such and expert, and (v) present mitigation
evidence that was available "that would have prevented the
imposition of the death penalty." The circuit court denied both
counsel's motion and defendant's amended motion.
Defendant now contends that the circuit court erred by not
appointing a new attorney to investigate and argue defendant's
assertions regarding the ineffectiveness of his original trial
counsel. He invites this court to remand the matter to the trial
court with directions to appoint new counsel and to hold a hearing
on the matter. We decline to do so.
This court has never held that new counsel must be appointed
every time a defendant presents a pro se motion for a new trial
alleging ineffectiveness of counsel. See People v. Nitz, 143 Ill.
2d 82, 134 (1991). Rather, to determine whether new counsel should
be appointed, the circuit court should examine the factual matters
underlying defendant's claims and, if the claim lacks merit or
pertains to matters of trial strategy, new counsel need not be
appointed. Nitz, 143 Ill. 2d at 134.
We have carefully examined defendant's claims and conclude
that they do not meet the criteria established in Nitz for the
appointment of new counsel. To begin with, four out of the five
allegations raised by defendant are conclusory and therefore lack
merit. For example, defendant claims that his counsel should have
investigated "relevant facts and witnesses," but he has offered
neither the circuit court nor this court any explanation as to what
or to whom he is referring. Likewise, defendant has not set forth
the nature of the exculpatory information his counsel should have
discovered. Nor does defendant elaborate on how defense counsel's
failure to pursue plea bargaining possibilities was anything other
than trial strategy, particularly where it is not alleged that the
other codefendants were offered pleas. See People v. Palmer, 162
Ill. 2d 465, 477 (1994). Defendant's contention regarding his
attorney's failure to adduce mitigation evidence during the
sentencing hearing is equally without merit. In his motion,
defendant does not reveal the character of the mitigation evidence
to which he alludes, nor does he state how it would have changed
the outcome. Additionally, the record reveals that his attorney did
in fact call a total of eight witnesses during the mitigation phase
of the hearing. Thus, this is not a case in which absolutely no
evidence in mitigation was presented to the jury.
Defendant's remaining claim, that his attorney should have
presented the testimony of a forensic expert to dispute the State's
fingerprint evidence, fares little better. Trial testimony
indicated that the State's expert, Garold Warner, and two of his
associates concluded that there were 25 "points of agreement"
between defendant's fingerprints and those found at the scene of
the crimes. According to Warner, fingerprint examiners in the
United States tend to use between 8 and 10 points of agreement
before arriving at a conclusion. Based on this evidence, it cannot
be said that defense counsel's decision not to call an independent
expert constituted ineffectiveness. It may very well have been a
matter of trial strategy to not call an expert--a withering cross-
examination as to the points of agreement could only serve to
reinforce the strength of the fingerprint identification in the
eyes of the jury.
As we stated in Nitz, new counsel should be appointed only if
the pro se allegations show possible neglect of the case. Nitz, 143
Ill. 2d at 134. In the case at bar, however, defendant's
contentions are either insufficient to show possible neglect or
concern decisions made by counsel which were well within the bounds
of proper trial strategy. They simply do not constitute strong and
convincing proof of incompetency when considered against the
totality of counsel's conduct during trial. See People v.
Generally, 170 Ill. App. 3d 668, 677 (1988). For these reasons, the
circuit court's ruling in this matter will not be disturbed.
II. Sentencing Hearing Issues
Testimony of Victims' Relatives
Defendant maintains that the circuit court violated his eighth
amendment right to a fair sentencing hearing by allowing members of
the victims' families to testify as to their belief that the death
penalty should be imposed. Specifically, defendant cites as
improper several questions posed by Special Assistant Attorneys
General Keith Jensen and Duane Bailey to the three relatives of the
victims called by the State during aggravation. Both Jensen and
Bailey asked each witness which penalty he or she wanted the jury
to impose. In response, each witness expressed the desire that the
jury impose the death penalty. Defendant concedes that he has
waived this issue because no contemporaneous objection was made
during the hearing; however, he posits that defense counsel's
failure to object constitutes ineffective assistance of counsel.
Accordingly, we will review the claim on the merits.
Generally, in order to establish ineffective assistance of
counsel, a defendant must show both that counsel's representation
fell below an objective standard of reasonableness and that a
reasonable probability exists that, but for the error, the result
of the trial would have been different. Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v.
Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland). However, we
may resolve a claim of ineffective assistance of counsel by
reaching only the prejudice component, for lack of prejudice
renders irrelevant the issue of counsel's performance. People v.
Erickson, 161 Ill. 2d 82, 90 (1994).
The State acknowledges in its brief that the testimony of
David Thompson, Sr., Estella Buckles, and Christine Mosby regarding
the appropriateness of the death penalty was improper under Booth
v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529
(1987), rev'd in part, Payne v. Tennessee, 501 U.S. 808, 115 L. Ed.
2d 720, 111 S. Ct. 2597 (1991). Such a violation, however, is
subject to a harmless error analysis, and, therefore, reversal is
not mandated in every instance. See People v. Scott, 148 Ill. 2d
479, 554 (1992).
Contrary to defendant's contentions, we are unconvinced that
the outcome in this case would have been different had the
complained-of testimony been properly excluded. The remainder of
the State's case in aggravation was remarkably strong. Indeed, the
murders for which defendant stands convicted were cold-blooded and
methodical. Three of the victims were bound hand and foot and
summarily executed. Another victim, an unsuspecting neighbor who
had no involvement with the drug money, was shot when he
understandably acted confused when defendant came to his door,
displaying a gun and demanding money.
Additional testimony, which we can only characterize as
disturbing, revealed that after police released defendant from
questioning, he expressed regret over not killing the children who
were in Mosby's trailer because they might identify him. Thus,
defendant's remorse in the case stems not from the killing of five
individuals (two of whom he personally shot), but stems from his
not killing three young children. Defendant also told another State
witness that he "would live to kill again." These facts lead to the
inescapable conclusion that defendant utterly lacked any remorse
for his crimes or rehabilitative potential. In contrast, the
evidence in mitigation was slight--family members and friends
testified that defendant came from a religious household and cared
deeply for his children.
Accordingly, the State's evidence, coupled with the circuit
court's instruction to the jury that its decision was not to be
swayed by sympathy, passion, or prejudice, compels our conclusion
that the error in admitting the improper testimony was harmless
beyond a reasonable doubt, and that no prejudice resulted to
defendant from its admission. Therefore, we cannot conclude that
"counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result." Strickland, 466 U.S. at 686, 80 L. Ed. 2d
at 692-93, 104 S. Ct. at 2064.
That said, we stress that our resolution of this issue is
derived from the particular facts of this case and the overwhelming
nature of the State's aggravating evidence at the sentencing
hearing. The case at bar was tried in 1995, some seven years after
the United States Supreme Court's decision in Booth v. Maryland and
four years after its decision in Payne v. Tennessee. As such, there
is simply no reason for either Jensen or Bailey to have asked the
members of the victims' families for their opinions in the manner
revealed in this record. We, therefore, are obliged to alert the
State that the future commission of such errors may not produce a
similar result and caution it that a closer case in
aggravation/mitigation may well result in reversal.
Improper Remarks Made to the Jury
Defendant next maintains that he was denied a fair sentencing
hearing by virtue of certain of the trial judge's remarks which
were made at the outset of the jury selection. Specifically, he
points to a comment made by the judge to a group of prospective
jurors regarding the imposition of the death penalty:
"If you find that the Defendant is not eligible,
that's it. The Defendant would be sentenced by the Court.
If you find that the Defendant is eligible, then we go to
phase, what is called phase three or a third phase, which
is the aggravation/mitigation phase. And that is the
phase where you would be deciding whether or not the
Defendant should receive the death penalty.
Based on what you hear at that phase, and again, you
will be instructed, you would be given instruction by the
Court that you would have to follow to make that
determination. If you determine that he should not
receive the death penalty, then he will be sentenced by
the Court. If you determine that he should, then that
would be the sentence imposed.
As will be explained at that time, all of these
decisions have to be unanimous decisions. That means all
twelve people have to make a unanimous decision."
(Emphasis added.)
Defendant now contends that the emphasized statement may have
misled the jury into thinking its decision to not impose the death
sentence would have to be unanimous. Defendant makes this argument
despite the fact that the remark was made by the court one week
before the jury deliberated its sentencing decision, that it was
heard by only 3 of the 12 jurors eventually impaneled in this case,
and that, even if it were confusing, it was later cured by the
court's giving of jury instructions which correctly set forth the
requirements for the imposition of the death penalty. However,
without addressing the doubtful merits of this claim, we note that
defendant failed to make a timely objection and to include it in
the post-trial motion; therefore, it is barred from review.
Moreover, we find no reason to excuse the procedural default
under the plain error doctrine. The evidence adduced at the hearing
cannot be said to have been closely balanced, nor did the trial
court's misstatement affect a substantial right. As we just noted,
prior to its deliberations at the conclusion of the
aggravation/mitigation phase of the hearing, the jury was properly
instructed as to the legal requirements for the imposition of the
death penalty. Kubat v. Thieret, 867 F.2d 351 (7th Cir. 1989),
relied upon by defendant, did not involve an allegedly confusing
remark to the jury which was later rehabilitated by a proper jury
instruction. Instead, Kubat concerned the effect of an improper
jury instruction itself. Because we believe Kubat is wholly
inapposite to the case at bar, we decline defendant's invitation to
raise a single misstatement made by the judge during voir dire to
the level of improperly instructing the entire jury.
In a similar vein, defendant also takes issue with a comment
made by the trial judge before a different group of prospective
jurors during voir dire. At the time, the judge was questioning a
prospective juror about why he had indicated on his juror
information card that he would not impose the death penalty under
any circumstances:
"PROSPECTIVE JUROR: I wouldn't under any
circumstances. I am, my answer is based on my own
feelings, that in putting myself in that particular
situation, if the death sentence was imposed on me, I
would want it done. And it is not being done at that
time.
THE COURT: Okay. But that is not a consideration for
this jury to determine.
PROSPECTIVE JUROR: I know it.
THE COURT: If they in fact carry it out or do not
carry it out, there is nothing that anyone in this room,
including myself, can do about that.
What I am asking you, would you refuse to impose it
because of that then?
PROSPECTIVE JUROR: No."
The prospective juror was eventually excused; however, defendant
claims that 2 of the 12 members of his jury heard the exchange. He
argues that the judge's comment improperly minimized the jury's
sense of responsibility over their decision whether to impose the
death penalty.
Like the other comment made during voir dire, defendant failed
to object to the trial judge's remark at trial and failed to
include the issue in either of his post-trial motions. Accordingly,
the issue has not been properly preserved for review.
Moreover, defendant's procedural default cannot be excused
under the plain error doctrine. As explained above, the evidence at
the sentencing hearing was not closely balanced. We also disagree
with defendant's characterization of the comment as a deprivation
of his eighth amendment right under Caldwell v. Mississippi, 472
U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). In Caldwell,
the prosecutor informed the jury during closing argument that its
decision was automatically reviewable by the state supreme court.
On appeal, the United States Supreme Court held that it is
constitutionally impermissible to rest a death sentence on a
decision made by a sentencer who has been led to believe that the
responsibility for determining the appropriateness of defendant's
death sentence rests elsewhere. Caldwell, 472 U.S. at 328-29, 86 L.
Ed. 2d at 239, 105 S. Ct. at 2639. In contrast, the trial judge
here directed his remark to a prospective juror who never sat on
defendant's jury. Although defendant claims that the remark was
made in the presence of two of his eventual jury members, our
review of the record indicates that no similar comment was made to
them by the trial judge when he spoke to them directly. Thus,
defendant's contention is based on the speculation that (i) the two
eventual jurors heard the remark and (ii) they remembered it one
week later during sentencing deliberations. The holding in Caldwell
did not rest on such attenuation, as it was indisputable that the
entire jury heard the prosecutor's closing argument. Even so, the
trial judge's remark was not of the same caliber as those in
Caldwell. Here, the trial judge did not convey the notion that
responsibility for sentencing rested elsewhere. Rather, the judge
correctly informed a prospective juror that his concerns over
whether the sentence would ever be carried out were not to
influence his decision regarding the appropriateness of the
penalty. Put another way, the judge correctly informed the
venireman that the jurors were to follow the law, as set forth in
the instructions that they would receive from the judge. Given
these facts, any error on the part of the trial judge in making the
remark does not rise to the level necessary to meet the second
prong of the plain error rule.
Nevertheless, defendant argues that the judge's erroneous
statement during voir dire was compounded during the actual
sentencing hearing when the State argued that
"[y]ou are going to be told that it is in your hands
whether to kill Sherrell or not. I don't believe that is
going to be the question. I believe the question was
decided a long time ago.
It is not within my hands to kill Sherrell Towns,
and I use the word kill because that is what you have
been told previously. It is not within [the defense
attorneys'] or even [the judge's] hands. It's not in your
hands to do that.
Because the actions that dictate a death penalty
were all caused by Sherrell Towns. He committed the
offense, not you. Your decision is to execute and sign
the death penalty verdict form based upon what he did.
There is no responsibility on your part for what he did.
No one made him do it, no one asked him to do it. He did
it of his own free will and his own volition."
These comments are similar to those this court has previously
upheld in People v. Page, 156 Ill. 2d 258, 284 (1993). As in that
case, we are of the opinion that the prosecutor did not attempt to
suggest to the jury that they were relieved of their responsibility
by defendant's own actions. See People v. Hudson, 157 Ill. 2d 401,
460 (1993). The jury in this case was correctly instructed on its
role in the sentencing process, and we do not believe that the jury
would have interpreted the comment as contradicting those
instructions. As such, the prosecutor's remarks did not run afoul
of the Caldwell decision and do not constitute plain error.
Defendant also maintains that he was denied a fair sentencing
hearing when the prosecutor told the jury
"[not to] get caught up in the business about he
will be in a cage his whole life. That sounds horrible.
But this cage is the same cage he has been through
before. The penitentiary system with exercise yards, with
work programs, with all kinds of facilities.
And likewise lawyers sometimes either inadvertently
or intentionally don't get everything out. Instruction
that you are going to get from the Court will tell you
that no person serving a natural life sentence of
imprisonment can be paroled or released, except through
an order of the governor of executive clemency.
There is always the loop hole, there is always the
chance, there is always that little extra business. No
one can say what will happen." (Emphasis added.)
Pointing to the portion of the statement emphasized above,
defendant claims the prosecutor improperly asked the jury to
speculate as to what might happen if defendant were not sentenced
to death.
We note that defendant is precluded from asserting this issue
on appeal due to his failure to object to the statement at trial
and his failure to include the issue in the post-trial motions
filed in this case. In addition, the claim does not fall within the
purview of the plain error doctrine because the evidence at the
sentencing was not closely balanced nor is a substantial right
affected. We note that although an argument commenting on the
possibility of defendant's being released and committing future
crimes would be improper (see People v. Gacho, 122 Ill. 2d 221
(1988)), the prosecutor here did not so argue. Instead, the comment
merely restated the jury instruction that persons serving terms of
natural life imprisonment will not be paroled or released except
through executive clemency. See Gacho, 122 Ill. 2d at 262.
Admission of Gang Affiliation & Other-Crimes Evidence
Defendant next argues that he was prejudiced during his
sentencing hearing by the circuit court's admission of certain
testimony concerning defendant's (i) gang membership and (ii)
involvement in other crimes. We address each in turn.
The State called Michael Lockett to testify during the
aggravation/mitigation phase of the sentencing hearing as to
certain statements made to him by defendant while both were
incarcerated in the same correctional center. Throughout his cross-
examination, defense counsel attempted to impeach Lockett by
eliciting from him his motivation for testifying. Defense counsel
intimated, for example, that Lockett was awaiting sentencing for
attempted murder and aggravated battery and was "hoping to get
something" in exchange for his testimony. When Lockett denied the
charge, defense counsel inquired about a pin which was affixed to
Lockett's lapel. Lockett indicated that the pin signified a
"conservative vice lord." On redirect, the prosecutor asked whether
defendant was a gang member. Over a defense counsel objection,
Lockett responded that defendant was a "gangster disciple." Lockett
further indicated that it was "difficult" to testify against a gang
member and fellow inmate because "all types of things could happen"
to him. On re-cross-examination, defense counsel then asked Lockett
whether his gang "[got] along" with defendant's gang. Lockett
admitted that they do not.
Defendant now contends that the circuit court should have
excluded this evidence of defendant's gang affiliation. This court
has consistently held that evidence of gang affiliation is
admissible as long as the relevance of the evidence is established.
People v. Hope, 168 Ill. 2d 1, 40 (1995), citing Dawson v.
Delaware, 503 U.S. 159, 117 L. Ed. 2d 309, 112 S. Ct. 1093 (1992).
We note that in this case, it was defense counsel's attempt to
impeach Lockett's credibility by noting his gang affiliation which
opened the door to the State's inquiry concerning defendant's
affiliation and the concomitant risks which attended Lockett's
testimony against another gang member. Indeed, defendant's gang
membership became relevant, as it provided the jurors with a
clearer picture of all the potential motivations behind Lockett's
testimony, thereby aiding them in evaluating the veracity of his
testimony. For example, fear of reprisal might have made Lockett's
testimony more believable. On the other hand, rivalry between the
two gangs might have detracted from its believability. Under these
circumstances, the relevance of the evidence cannot be seriously
questioned.
Defendant also maintains that he suffered prejudice when
Lockett testified that defendant had told him that it did not
matter whether he was convicted of the five murder charges and to
"look at how many he had gotten away with." Defendant argues that
the remark was uncorroborated, and that the circuit court should
have given the jury some guidance to assist it in determining
whether the purported conversation actually occurred or whether it
constituted "mere bragging."
Defendant's claim does not persuade. Under the provisions of
section 9--1(e) of the Criminal Code of 1961, a jury is allowed to
hear and consider information during sentencing regardless of its
admissibility under the rules governing the admission of evidence
at criminal trials. 720 ILCS 5/9--1(e) (West 1992). Although we
have recognized that some precautions may be necessary to preclude
the "contaminating influence" of improper information from
influencing the jury (see People v. Devin, 93 Ill. 2d 326, 348
(1982)), we are of the opinion that the jury in this case received
sufficient instruction in assessing the testimony. The circuit
court gave the jury Illinois Pattern Jury Instruction No. 1.02
(Illinois Pattern Jury Instructions, Criminal, No. 1.02 (3d ed.
1992)), which informed the jury that it could take into account a
witness' bias and the reasonableness of his testimony.
We further note Devin, the sole case to which defendant cites
in support of this argument, is readily distinguishable from the
case at bar. There, several witnesses testified at the sentencing
hearing that defendant had recounted to them detailed, graphic
descriptions of torture and murder. However, psychiatric experts
all agreed that a sociopathic personality (which defendant
possessed) frequently engages in homicidal fantasies. As a result,
this court reasoned that the jury should have been alerted to the
possibility that defendant's descriptions could have been the
product of fantasy and not defendant's actual conduct. Devin, 93
Ill. 2d at 348-49. Lockett's testimony in this case in no way
compares to the testimony given in Devin. Nor are we confronted
with the type of psychiatric testimony which called the Devin
testimony into question. For these reasons, we conclude that a new
sentencing hearing is not required in this case.
Disproportionality of Defendant's Death Sentence
Defendant further argues that his sentence of death is
disparate from the natural life sentence received by codefendant
Coleman, who was also convicted of five counts of murder. Defendant
points to the following evidence of disparate sentencing: Coleman
was older than defendant, Coleman was the "mastermind" behind the
crimes, Coleman's prior record was more extensive than that of
defendant, and Coleman's role in the offenses was equal to
defendant's. Defendant maintains that his disparate sentence
violates the constitutional prohibition against the arbitrary and
capricious imposition of the death penalty.
We begin our analysis of this issue by noting that the United
States Supreme Court has held that the eighth amendment does not
require comparative proportionality review if the death penalty
statute contains provisions that ensure the rational, consistent,
nonarbitrary imposition of the penalty. Pulley v. Harris, 465 U.S.
37, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984). Our death penalty
statute is such a statute. See People v. Kitchen, 159 Ill. 2d 1, 44
(1994). Nevertheless, this court has previously chosen to exercise
its discretion and has considered whether a sentence of death in a
particular case is disproportionately harsh in comparison with the
less severe sanction imposed on a codefendant convicted of the same
crime. See People v. Bean, 137 Ill. 2d 65 (1990); People v.
Ashford, 121 Ill. 2d 55, 82-90 (1988); People v. Gleckler, 82 Ill.
2d 145, 167-69 (1980). Factors of particular relevance include the
extent of defendant's involvement in the offense, the nature of the
offense, the character and background of the defendant, including
any criminal record, and his potential for rehabilitation. Kitchen,
159 Ill. 2d at 44. Thus, in the past, this court has examined the
facts of the particular case and the evidence introduced at both
the trial and the sentencing hearing. We may also consider, as a
matter of reference, the sentence imposed on a codefendant in light
of his involvement in the offense.
In this case, the record contains evidence that defendant
asked one of his cousins to participate in the armed robbery. In
addition, defendant supplied the vehicle which enabled the trio to
get to the crime scene. Therefore, we have little difficulty in
dismissing defendant's contention that Coleman was the sole
"mastermind" behind the crimes. There is ample support in the
record for the conclusion that defendant equally took part in the
planning of the crimes. Moreover, once the armed robbery commenced,
the evidence revealed that defendant shot two of the five victims.
The other three victims were shot by codefendant Remon Williams.
There is no evidence in this record that Coleman acted as a
triggerman. It is particularly relevant, in our view, that
defendant admitted to being the first to shoot any of the victims
and to being Jeff Mosby's assailant. Thus, it was defendant, and
not Coleman, who turned the armed robbery into a mass murder. We
note that defendant has supplemented the record in this case with
testimony from Coleman's trial in which one of the children in
Mosby's trailer testified that Coleman shot Mosby. However, we are
also aware of other testimony in the case which revealed that
defendant, not Coleman, shot Mosby. We will not speculate as to how
Coleman's jury resolved this factual question.
Furthermore, defendant has presented this court with little
evidence of Coleman's character, apart from his prior criminal
history. Although Coleman's prior criminal record may be
quantitatively more severe than defendant's, that is but one factor
in our evaluation. Testimony adduced at both the trial and the
sentencing hearing provides some insight into defendant's character
which we do not have with respect to Coleman. We note that after
being questioned by police and released, defendant fled the state.
Even after being indicted in these crimes, defendant, a father of
three children, could only express regret that he did not kill the
only eyewitnesses to his deeds, the three children in Mosby's
trailer. While awaiting trial on these charges, defendant told a
fellow inmate he would live to kill again. Thus, defendant
exhibited no remorse whatsoever for his crimes and displayed a
chilling lack of rehabilitative potential. On this record, we
cannot say defendant's death sentence is disproportionate to
Coleman's life sentence.
In summary, we conclude that defendant's conduct must be
considered more culpable than that of Coleman in that it was
defendant's actions which precipitated the gunfire at the trailers.
In light of defendant's character, Coleman's more severe criminal
record, standing alone, does not render defendant's death sentence
disparate. For these reasons, we reject defendant's contentions
that his death sentence is unreasonably disproportionate from the
natural life sentence imposed on Coleman.
III. Constitutionality of Statute
In his final two arguments, defendant challenges the Illinois
death penalty statute (720 ILCS 5/9--1 (West 1992)), asserting it
is unconstitutional because, once a statutory aggravating factor is
found, the defendant bears the burden of persuading the jury that
death should not be imposed. He maintains that the statute thereby
creates a rebuttable mandatory presumption in favor of the death
sentence, which contravenes the eighth amendment. This court has
repeatedly rejected this contention (see, e.g., People v. Burt, 168
Ill. 2d 49, 81 (1995); People v. Simms, 143 Ill. 2d 154, 183-84
(1991); People v. Fields, 135 Ill. 2d 18, 76 (1990)), and we do so
here again today.
Defendant also argues that although various aspects of the
statute have been found constitutional individually, the cumulative
effect of all the aspects is to render the statute
unconstitutionally arbitrary and capricious. We have considered and
rejected this argument numerous times (see People v. Edgeston, 157
Ill. 2d 201, 247 (1993); People v. Thomas, 137 Ill. 2d 500, 549-50
(1990); People v. Phillips, 127 Ill. 2d 499, 542-43 (1989)), and
defendant offers us no reason to reconsider our past holdings.
CONCLUSION
For the reasons stated, the judgment of the circuit court of
Madison County is affirmed. The clerk of this court is directed to
enter an order setting Tuesday, March 18, 1997, as the date on
which the sentence of death entered in the circuit court of Madison
County is to be carried out. The defendant shall be executed in the
manner provided by law. 725 ILCS 5/119--5 (West 1994). The clerk of
this court shall send a certified copy of the mandate in this case
to the Director of Corrections, to the warden of Stateville
Correctional Center, and to the warden of the institution where
defendant is confined.
Affirmed.