NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 77982--Agenda 3--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RONALD R.
ALVINE, Appellant.
Opinion filed September 26, 1996.
JUSTICE MILLER delivered the opinion of the court:
Following a jury trial in the circuit court of Du Page
County, the defendant, Ronald R. Alvine, was convicted of first
degree murder, burglary, and possession of a stolen motor vehicle.
Defendant waived his right to a jury for sentencing. At a separate
sentencing hearing the trial court found defendant eligible for the
death penalty. The trial court further determined that there were
no mitigating factors sufficient to preclude imposition of that
sentence and defendant was sentenced to death. The trial judge also
sentenced defendant to 14 years' imprisonment on the burglary and
possession of a stolen motor vehicle convictions, to run
concurrently with his death sentence. The defendant's execution has
been stayed pending direct review by this court. Ill. Const. 1970,
art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that
follow, we reverse count I of defendant's murder conviction, vacate
his death sentence, and remand for a new trial. We affirm
defendant's conviction on count II, felony murder, and his
convictions and sentence for burglary and for possession of a
stolen motor vehicle.
FACTS
The present charges arose from an incident in the early
morning of April 20, 1992, in which Officer Mike Browning was
killed. At trial, Charles Pierce testified that he lived across the
street from Crossroads Chevrolet, a car dealership. Just after
midnight, Pierce witnessed a break-in at the dealership and
telephoned 911. A tape of Pierce's call to the 911 dispatcher was
played at trial. Pierce saw a white male, later identified as
defendant, inside the dealer's showroom. Pierce saw defendant enter
a Corvette, accelerate, and drive through the showroom window.
Defendant then pulled the car over to the right of the dealership
entrance gates. Defendant exited the Corvette, re-entered the
showroom, and reappeared near the Corvette after approximately one
minute. At the same time, Pierce saw a police vehicle approach and
park just past the front gate inside the entrance to the
dealership, near the Corvette and a blue Riviera. An officer exited
the police car and stood in front of his squad car, with his arms
extended and his hands clasped in front of him, facing the
Corvette.
A second police car arrived and parked just outside the
entrance gate. The sole occupant of the second squad car, later
identified as the victim, Mike Browning, exited. Browning stood
beside his squad car with his arms extended and his hands clasped,
as if holding a gun. Pierce then saw defendant jump into the
Corvette and accelerate, driving towards Browning. The Corvette
struck Browning and his squad car. After striking Browning's car,
the Corvette swung to the right and spun out into the street.
Donald Reever, a West Chicago policeman, testified that
he was the first officer to arrive at the scene. Reever pulled into
the well-lighted parking lot through the open entrance gate. After
he arrived, he saw a blue vehicle backing up near the used-car
section of the lot. The blue vehicle struck a parked car.
Reever observed defendant sitting in the driver's seat of
the blue car. Reever then opened the door of his car, drew his gun,
and leaned out of the door with his gun resting on the spotlight
attached to his car. In compliance with Reever's order, defendant
exited the blue car. About the same time, Reever heard Browning
state over the radio that he had arrived at the scene, and Reever
saw Browning's squad car pull up behind him and a little to the
left.
As Browning's squad car pulled behind Reever, defendant
was walking toward the front of the blue car. Reever again told
defendant to put his hands up in the air, but defendant began to
step to Reever's left. Defendant then ran and jumped into the
Corvette. The Corvette accelerated quickly. Reever stepped back to
get out of the way, and unsuccessfully attempted to grab defendant
with his left hand. Reever turned around and saw Browning standing
in front of his squad car at the front entrance to the dealership
lot.
As the Corvette continued to accelerate, it drove
directly at Browning. Reever did not see any brake lights, and the
acceleration continued. Reever yelled to Browning to get out of the
way. According to Reever, Browning was struck by the front end of
the Corvette and was hurled up into the windshield of the car.
Browning rolled over the hood onto the passenger side of the
vehicle, and onto the ground. The Corvette then hit Browning's
squad car, turned westbound onto the highway in front of the
dealership, and spun around on the wet pavement.
Browning sustained fatal head injuries, including
multiple skull fractures. He was pronounced dead at 4:20 a.m. on
April 20. Dr. Deborah Kay, a pathologist, testified that death was
caused by multiple blunt force injuries and extensive injuries to
the head.
Paramedic John Niemann treated defendant at the crime
scene. Defendant had an observable fracture to his left thigh,
which was later discovered to have resulted from a bullet.
Defendant was alert and oriented and responded appropriately to
questions. As defendant was being lifted into the ambulance,
paramedics asked him what had occurred. Defendant stated that "he
got in my way and I just put my foot to the floor." Niemann
testified that defendant was laughing while he made the statement.
Niemann did not smell alcohol on defendant's breath. Niemann also
stated that defendant was smirking inappropriately at other times
during the conversation.
Paramedic Michael Eckler also treated defendant at the
scene on the night of the offenses. When Eckler arrived there he
found defendant lying on his back, handcuffed, next to a white
Corvette. Defendant was conscious and answered questions
appropriately. Defendant told Eckler that he had been drinking, and
Eckler smelled a moderate amount of alcohol on defendant's breath.
Joseph Boyle, a physician at Central Du Page Hospital,
treated defendant in the early morning hours of April 20, 1992.
Defendant's condition was stable, and he had a gunshot wound to the
left thigh. A routine blood test for the presence of narcotics or
alcohol revealed that defendant's blood-alcohol level was 0.17.
Frances Culler, head nurse of the emergency room at
Central Du Page Hospital, also examined defendant. Culler testified
that defendant was alert and responsive. She did not observe overt
signs of alcohol and did not recall if she detected an odor of
alcohol on defendant's breath.
Val Blazic, a deputy sheriff, guarded defendant at the
hospital. From his position outside defendant's room, Blazic
overheard defendant tell his sister over the telephone, "I had to
kill the son of a bitch. I had to or he would have killed me. You
would think he would have shot out one of the tires instead of
shooting me."
Patricia McKinstry, a physical therapist, treated
defendant while he was a patient at Central Du Page Hospital.
Defendant told McKinstry that he had stolen a car or a convertible
and that "the damn cop got in front of me. Shot me in the *** leg."
Defendant related to McKinstry that his sister had telephoned him
and that she said two police officers had been killed. Defendant
told McKinstry that he did not kill two of them, he only "got one."
Conflicting evidence of whether or not police weapons had
been fired at the scene was presented. Detective Raymond Rodriquez
testified that when Officer Browning's gun was recovered from the
ground at the crime scene it contained the maximum number of
cartridges in the magazine. The weapon also contained a discharged
cartridge casing caught abnormally in the ejection port. Rodriquez
believed that the gun had discharged abnormally due to an improper
grip on the weapon. Officer Reever testified that he never fired
his gun on the evening of the offenses. Officer Laz Perez, who
examined Reever's gun after the incident, testified that he
received the weapon fully loaded and he did not find powder burns
in the chamber. However, Richard Vaughn, a forensic sergeant,
examined the same weapon two days later and, using an eye glass and
a light, observed a substance in the barrel that appeared to be gun
powder residue. Reever testified in rebuttal that he last fired his
gun approximately six weeks earlier. He used the gun to destroy a
deer injured in a traffic accident. Reever stated that although
proper police procedure requires that the gun be cleaned after each
use, Reever did not clean his gun after shooting the deer.
Robert Schoenthaler, co-owner of Crossroads Chevrolet,
testified that defendant had no authority to enter Crossroads
Chevrolet or to remove a 1992 Corvette from the premises.
For the defense, Mary Alvine testified that she is
defendant's youngest sister. On April 24, 1992, Mary spoke with
defendant by telephone. Defendant told her that he crashed and that
he was ducking from bullets that were flying up above his head and
through the windshield. Defendant told his sister that because he
was ducking down, he did not see the officer before he hit him.
Mary Alvine denied that defendant had said he had to "kill the son-
of-a-bitch." During cross-examination she admitted that defendant
told her he broke into the dealership to steal a Corvette.
The defense presented the testimony of Gary W. Cooper, an
accident investigator. Cooper's testimony consisted of his
observations of markings on and damage to the Corvette defendant
drove, Browning's squad car, and the steel gate at the dealership
entrance.
Defendant did not testify on his own behalf.
At the close of evidence, the jury returned verdicts
finding defendant guilty of both knowing murder and felony murder
in addition to burglary and possession of a stolen motor vehicle.
Following the verdicts, the defense moved for a hearing
regarding defendant's fitness for sentencing. The court found a
bona fide doubt of defendant's fitness existed and ordered
defendant to be examined. Following a hearing, the judge found
defendant fit to be sentenced.
Defendant waived his right to a jury for sentencing and
the case proceeded to a bench sentencing. At the first stage of the
sentencing hearing, the judge found that defendant was 18 or older
at the time of the murder for which he was convicted. The judge
further found that defendant was eligible for the death penalty
based on the statutory aggravating factors of murder in the course
of a felony (Ill. Rev. Stat. 1991, ch. 38, par. 9--1(b)(6)) and
knowing murder of a policeman in the course of his official duties
(Ill. Rev. Stat. 1991, ch. 38, par. 9--1(b)(1)).
The sentencing hearing then progressed to the aggravation
and mitigation phase. The State presented evidence of defendant's
prior convictions for two separate burglaries, unlawful use of a
weapon by a felon, forgery, involuntary manslaughter and arson.
Defendant presented the testimony of his relatives, a mitigation
expert and a psychiatrist.
At the conclusion of the evidence in aggravation and
mitigation the judge gave a detailed ruling and found that the
mitigating factors were insufficient to preclude the imposition of
the death sentence. Defendant was sentenced to death on the knowing
murder count.
ANALYSIS
The defendant raises a number of issues concerning both
the guilt-innocence phase of the proceedings and the sentencing
hearing. However, due to our disposition of defendant's first issue
on appeal, we need address only those claims concerning the guilt-
innocence phase of trial.
The first issue we address is whether defendant's
conviction on count I, for knowing murder, must be reversed because
of language added to the pattern jury instructions.
Defendant was indicted for intentional, knowing and
felony murder. Ill. Rev. Stat. 1991, ch. 38, pars. 9--1(a)(1),
(a)(2), (a)(3). The State nol-prossed the intentional murder count
and proceeded to trial on the knowing and felony murder counts.
At the close of evidence in the guilt phase of trial,
defendant asserted that he was entitled to argue that he was
fleeing to get out of the line of police fire at the time of
Officer Browning's death. Defendant contended there was evidence
that he had sustained a gunshot wound during the incident and that
both officers' guns had been fired. Defendant argued that based on
this evidence it was possible that he had been shot before he
entered the Corvette, supporting his argument that he fled in
response to an excessive use of force. Defendant also stated that
based on the evidence presented of his blood-alcohol level at the
time of the offense, the jury should be allowed to consider whether
his actions were reckless or if he knew that his acts created a
strong probability of death or great bodily harm.
We note that during closing arguments defendant contended
that evidence showed that he had been shot before he entered the
Corvette, and in the process of fleeing, struck the tubular steel
gate at the entrance to the dealership. Defendant further argued
that Officer Browning's fatal head injuries were not the result of
being struck by the vehicle, but by the steel gate.
Based on this theory of the case, the defense sought jury
instructions on self-defense and on the lesser offenses of second
degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9--2) and
reckless homicide (Ill. Rev. Stat. 1991, ch. 38, par. 9--3(a)).
The trial court ruled that defendant could rely on a
theory of self-defense and could argue that he was guilty of one of
the lesser offenses, second degree murder or reckless homicide, but
only as to count I, the knowing murder charge (Ill. Rev. Stat.
1991, ch. 38, par. 9--1(a)(1)). The judge ruled that it was
improper to instruct the jury on self-defense or lesser offenses
for count II, the felony-murder charge (Ill. Rev. Stat. 1991, ch.
38, par. 9--1(a)(2)).
The parties discussed how to present the instructions so
that the jury would understand which instructions applied to the
appropriate murder count. The defense tendered a set of pattern
instructions, but the judge rejected them because he did not
believe they adequately differentiated between the two murder
charges. The State submitted a set of instructions with the phrase
"Strong probability of bodily harm" placed as a subheading or as a
parenthetical within the text of those instructions pertaining to
count I. For those instructions pertaining to count II, the phrase
"Felony Murder" appeared as a subheading. Except for the
subheadings and parenthetical phrase, the instructions mirrored the
pattern jury instructions.
The defense objected to the State's instructions on count
I, arguing that the use of parenthetical language was not
recommended in the pattern instructions. Over defendant's
objection, the judge allowed the instructions tendered by the
State.
After the judge gave the instructions, the jurors retired
to deliberate. The jurors deliberated from afternoon until 10
o'clock that night. The next morning they sent the judge a note
asking if there was a time limit on their deliberations. They also
asked the judge if there was some legal action he would take if
they were unable to reach a verdict. After consultation with both
parties, the judge told the jurors there was no time limit and
asked them to continue their deliberations.
Approximately 1½ hours later, the jurors sent another
note to the judge. The note read:
"We are having a problem in only one area of
deliberation. The page of instructions that
explains `A person acts knowingly ...' is not clear
to us. Can you explain it to us in plain English.
This is very important to our deliberation for the
following reason:
In the document of Jury instructions it states
only once `... HE KNEW THAT HIS ACTS created a
strong probability of great bodily harm.'
In all other sections of the document
regarding the language of bodily harm it states:
`Under the law, a person charged with first
degree murder (strong probability of great bodily
harm) may be ...' No mention is made of `he knew
his act ...'
Is the standard of the law: `strong
probability of great bodily harm' or `he KNEW that
his acts created a strong probability of great
bodily harm.'
Please help us with this technical matter.
Sincerely,
Foreman" (Emphasis in original.)
The trial judge consulted with the parties to formulate
a response, but before an answer was agreed on, the jury returned
a verdict finding defendant guilty on all counts.
Defendant claims that the jury instructions on count I
were internally contradictory and confused the jury. He argues that
the effect of the erroneous instructions was that he was deprived
of his constitutional right to a fair trial. U.S. Const., amends.
VI, XIV; Ill. Const. 1970, art. I, §§2, 8.
We first address the State's argument that defendant has
waived this issue. As part of his claim, defendant contends that
the trial judge should have given Illinois Pattern Jury
Instructions, Criminal, No. 7.01X (3d ed. 1992) (hereinafter IPI
Criminal 3d No. 7.01X) instead of using the subheadings and the
parenthetical language. IPI Criminal 3d No. 7.01X is specifically
designed for those cases, like this one, in which a defendant is
charged with more than one murder count, one of which is felony
murder, and where the court will also be giving second degree
murder instructions that will apply to murder counts other than
felony murder. IPI Criminal 3d No. 7.01X, Committee Note. IPI
Criminal 3d No. 7.01X instructs the jury that the judge will use
the terms "Type A" and "Type B" to distinguish between "different
kinds of first degree murder."
Although defendant raises this argument on appeal, he did
not tender IPI Criminal 3d No. 7.01X at trial. It is well
established that a party may not raise on appeal the failure to
give an instruction unless the instruction was tendered at trial.
People v. Tannenbaum, 82 Ill. 2d 177, 180 (1980). Accordingly,
defendant has waived the argument that the court should have given
IPI Criminal 3d No. 7.01X.
Defendant has not waived his general challenge to those
jury instructions that included the differentiating language. At
trial, defendant properly objected to inclusion of the
parenthetical information in the jury instructions for count I.
Defense counsel also tendered a set of instructions without the
subheadings and parenthetical phrases. This issue was also raised
in defendant's post-trial motion. Therefore, defendant has
preserved the general issue for review.
Defendant's substantive argument regarding the jury
instructions focuses on the content of the phrase used to
differentiate between the two murder counts. The challenged
language appeared in the text or headings of some nine different
instructions. Defendant points out that the phrase "Strong
probability of bodily harm" is an incomplete statement of the
mental state necessary for a finding of guilty of "knowing" first
degree murder. Ill. Rev. Stat. 1991, ch. 38, par. 9--1(a)(2). In
contrast to the phrase "strong probability of bodily harm" employed
here in the text or headings of some nine different instructions to
differentiate between the two murder counts, the first degree
murder statutes states that:
"A person who kills an individual without
lawful justification commits first degree murder
if, in performing the acts which cause the death:
***
he knows that such acts create a
strong probability of death or great bodily
harm to that individual or another." Ill. Rev.
Stat. 1991, ch. 38, par. 9--1(a)(2).
Although the supplemental language omitted any mention of
the requisite mental state, the text of both the definitional and
the issues instructions for count I properly explained the mental
state requisite for a finding of guilty. Defendant argues that
because the knowledge element described in the body of the
instruction conflicted with the wording of the subheadings and
parenthetical phrases, the jurors could have convicted him on count
I if they believed the State had proven his acts created a
substantial risk of death or great bodily harm, without regard to
his mental state.
Defendant relies on People v. Jenkins, 69 Ill. 2d 61
(1977), and People v. Haywood, 82 Ill. 2d 540 (1980), to support
his claim of reversible error. In Jenkins, during a trial for
attempted murder a central issue was whether the level of the force
defendant used was justified. The judge in Jenkins instructed the
jury that it should find against the defendant on the attempted
murder count if the defendant performed an act that constituted a
substantial step towards the commission of the crime of murder. The
instruction omitted any reference to the fact that defendant must
not have been justified in using the force he employed. A separate
jury instruction properly stated the law, including that defendant
must not have been justified in using the force that he employed.
This court held that the instructions were contradictory and
inconsistent, and that the giving of contradictory instructions on
an essential element in the case was prejudicial error. Jenkins, 69
Ill. 2d at 66.
Similarly, in People v. Haywood, 82 Ill. 2d 540, 545
(1980), the trial court gave two instructions on the defense of
voluntary intoxication. The first instruction, a pattern
instruction, stated that "an intoxicated person is criminally
responsible for his conduct unless his intoxication renders him
incapable of acting knowingly and intentionally." A second, non-IPI
instruction told the jury that intoxication would not be a defense
unless it rendered defendant "incapable of any mental action."
Haywood, 82 Ill. 2d at 544. Citing Jenkins, this court held that
when conflicting instructions are given, one of which is a correct
statement of law and the other is an incorrect statement of law,
the error is reversible and not harmless. Haywood, 82 Ill. 2d at
545.
The State argues that the instant case is distinguished
from the facts in Jenkins and Haywood because the instructions were
not contradictory. The State maintains the supplemental language
was a mere label intended to help the jurors to differentiate
between the first degree murder counts.
We agree with the State's position that, in contrast to
the facts in Jenkins and Haywood, these jury instructions did not
facially present conflicting accounts of the law. The definitional
and issues instructions contained all of the necessary elements and
were, by themselves, correct legal statements. We also believe that
it was not improper to use supplemental language to convey to the
jury that the instructions for self-defense and second degree
murder applied only to count I.
Nonetheless, jury instructions should not be misleading
or confusing. People v. Bush, 157 Ill. 2d 248, 254 (1993). Here,
the insertion of supplemental language that contained only a
partial description of a key element of the offense allowed the
possibility that the jury would be confused or misled regarding the
mental state necessary for a conviction on count I.
In this case, we are not limited to an abstract analysis
of whether or not the inclusion of this supplemental language
confused the jurors. The first note from the jury to the court
indicated some difficulty in reaching a verdict. The second note
from the jurors informed the court that the jury was confused on
the question whether a knowing mental state was required for a
finding of guilty. Although the text of some of the instructions
contained complete statements of the law, the effect of the
inserted language was that the jurors were demonstrably confused on
this key issue. The jurors found one correct description of the
mental state for the offense yet were apparently confused by the
repeated references to the shorthand description of the offense.
The State argues that even though the jurors stated they
were uncertain whether or not a knowing mental state was required,
the jury's subsequent verdict on count I is valid and should not be
reversed. The State argues that it is more likely than not that the
jury cured any possible confusion by referring to the text of the
definitional and issues instructions. Moreover, the State notes
that both parties in their closing arguments informed the jury that
knowledge was a key element of the count I charge.
We cannot adopt the State's reasoning on this point.
While this court has previously held that jury instructions should
be considered as a whole and not in isolation (People v. Terry, 99
Ill. 2d 508, 516 (1984)), this proposition rests on the assumption
that the jury instructions clearly and properly inform the jurors
of the law. Terry, 99 Ill. 2d at 516; see also People v. Kolep, 29
Ill. 2d 116, 125 (1963). But when inconsistent instructions are
presented to a jury, the jury's ability to perform its function is
inhibited because the jury has not been adequately apprised of the
law to be applied. Haywood, 82 Ill. 2d at 545; Jenkins, 69 Ill. 2d
at 66. When the instructions are confusing and create a situation
in which the jurors believe they are forced to choose between
conflicting elements within the instructions, as here, the
instructions as a whole cannot be considered curative of the
confusion. Jenkins, 69 Ill. 2d at 66-67.
In this case, the jury was led to choose between the
standard of "knowing his action caused a substantial risk of bodily
harm" and the mere existence of a "substantial risk of bodily
harm." It is clear that faced with the confusion regarding this
element, the jury resolved the dilemma before reaching a verdict.
Given the jury's note to the judge, and the absence of any
clarifying instruction, we cannot assume that the jurors based
their verdict on a proper statement of the law.
We also reject the State's argument that the
instructional error is harmless. An error in a jury instruction is
harmless if the result of the trial would not have been different
if a proper instruction had been given. People v. Lovelace, 251
Ill. App. 3d 607, 620 (1993). Here, where the jury was given
instructions that caused confusion on the key element of
defendant's mental state at the time of the offense, we cannot say
the error is harmless. The jury may well have decided that a strong
probability of bodily harm existed, but may not have decided
whether defendant knew that his acts created a strong probability
of bodily harm or death. Accordingly, we reverse his conviction on
count I.
The jury returned a separate verdict form finding the
defendant guilty of count II, felony murder, and we next consider
the effect on this additional conviction of our reversal of count
I. The judge instructed the jurors that to sustain the charge of
felony murder the State must prove that the defendant performed the
acts that caused the death of the victim and that, when defendant
did so, he was committing the offense of burglary. Ill. Rev. Stat.
1991, ch. 38, par. 9--1(a)(3); IPI Criminal 3d No. 7.01. The only
language added to the pattern instructions was the phrase "felony
murder," which was used as a heading and a parenthetical to
distinguish count II from count I.
We believe that defendant's separate conviction on count
II, felony murder, may stand. The statute does not require a
finding of a particular mental state for a guilty verdict on a
charge of felony murder. Additionally, the instructions used in
this case accurately described the elements of the offense, and the
jury had no question regarding this count. Finally, as noted above,
the jury returned a separate verdict form finding defendant guilty
of the felony murder and burglary charges. Therefore, defendant's
conviction on count II, felony murder, is not affected by the
reversal of his conviction on count I.
We next address defendant's remaining claims arising from
the guilt-innocence phase of trial. Defendant argues that numerous
remarks made by the prosecutor during the guilt phase of the trial
improperly deprived him of a fair trial and warrant reversal of his
convictions.
In her rebuttal closing argument, the prosecutor made an
analogy linking the role of the victim and his support of another
officer at the crime scene to the role of the jury in reaching a
verdict. The prosecutor first noted that the victim had arrived at
the scene as Officer Reever's backup. She then stated:
"You are Mike Browning's backup. When Mike got out
to that scene the only thing that stood between the
defendant and his freedom was Mike Browning, and
today, Ladies and Gentlemen, the only thing that
stands between this defendant and walking out the
door is you. You are Mike Browning's backup."
Defendant claims this comment invited the jurors to identify with
the victim and inflamed the passions of the jury against the
defendant. However, defendant did not object to the challenged
remark at trial and we therefore consider the issue waived. People
v. Mahaffey, 166 Ill. 2d 1, 27 (1995).
Defendant acknowledges that he did not object to the
remark at trial, but argues that the complained-of remark
constitutes plain error. Although issues not properly preserved may
be considered on review under the doctrine of plain error, we do
not believe that the plain error doctrine will defeat the waiver
here. 134 Ill. 2d R. 615(a). Plain error may be invoked in criminal
cases where the evidence was closely balanced or the error was of
such magnitude that the accused was denied a fair trial. People v.
Bean, 137 Ill. 2d 65, 80 (1990). Neither element has been satisfied
in the case before us. The prosecutor presented overwhelming
evidence of defendant's guilt, including a 911 tape of an
eyewitness account, testimony of the officer at the scene and
defendant's statements to medical personnel that he had killed a
police officer.
Further, we do not believe that the alleged error
deprived defendant of a fair trial. Prosecutors are afforded wide
latitude in closing argument. People v. Thompkins, 121 Ill. 2d 401,
445 (1988). The prosecutor's closing argument properly focused on
the testimony of the witnesses and the facts of the case. Moreover,
the court instructed the jurors orally and in writing that the
attorneys' arguments were not evidence that could be considered in
their deliberations. The complained-of comment occurred at the end
of the rebuttal argument and was a part of the prosecutor's pleas
to the jurors for a guilty verdict. Considered in the context of
the closing remarks as a whole (People v. Wiley, 165 Ill. 2d 259,
295 (1995)), we do not believe that this isolated comment
prejudiced the outcome of defendant's trial.
Defendant also suggests that he received ineffective
assistance of counsel in violation of his sixth and fourteenth
amendment rights (U.S. Const., amends. VI, XIV) because his counsel
did not object at trial to the "backup" remark. Claims of
ineffective assistance of counsel are analyzed under the two-prong
test established in Strickland v. Washington, 466 U.S. 668, 80 L.
Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted by this court in
People v. Albanese, 104 Ill. 2d 504, 525-26 (1984). To succeed on
a claim of ineffective assistance of counsel, a defendant must
prove that his attorney's performance fell below the objective
standard of reasonableness, as measured by reference to prevailing
professional norms, and that the substandard representation so
prejudiced defendant that there is a reasonable probability that,
without the errors, the outcome would have been different.
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at
2064. A reviewing court "need not determine whether counsel's
performance was deficient before examining the prejudice suffered
by the defendant as a result of the alleged deficiencies."
Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at
2069.
In the present case, we find that even if trial counsel's
performance was deficient as defendant alleges, it did not
prejudice defendant. The State presented extensive evidence of
defendant's guilt, including, as noted earlier, defendant's
statements to witnesses and eyewitness accounts of the events. We
therefore believe that trial counsel's failure to object to the
challenged remarks did not influence the outcome of defendant's
trial. Accordingly, we reject defendant's claim of ineffective
assistance of counsel.
Defendant next challenges another prosecutorial remark
during rebuttal. In an attempt to contrast the lives and choices of
the victim and defendant, the prosecutor described the victim's
preparations for work on the night he was killed. The prosecutor
then stated that on the same night defendant was
"[a]lso getting ready for work. His work is
burglary and he puts on his uniform. He puts on his
black pants, his black shirt, his black sweatshirt,
his black jacket. He is ready to go to work."
Defendant alleges that these remarks could only be interpreted as
informing the jury that defendant was a professional burglar,
implicitly suggesting that he had committed other unrelated
burglaries. Defendant further contends that the remarks allowed the
jurors to reach a verdict based on evidence outside the record.
Defendant did not object to the challenged remark at
trial, and therefore he has waived his claim on this issue.
Mahaffey, 166 Ill. 2d at 27. We also believe that the alleged
improper remark does not constitute plain error. As noted, the
prosecution presented substantial evidence of defendant's guilt.
Moreover, our review of the remarks indicates that the comments
would not have deprived defendant of a fair trial. People v.
Carlson, 79 Ill. 2d 564, 576-77 (1980). When considered in context,
it is reasonable to assume that the prosecutor's description of
defendant's attire was intended to support the conclusion that
defendant planned and prepared to steal the Corvette from the
dealership. Evidence presented to the jury included descriptions of
defendant's clothing at the time of the murder and after he was
taken into custody.
Defendant also claims that his counsel's failure to
object to the comment was ineffective assistance of counsel. As
previously noted, we do not find that the remark was improper.
Accordingly, trial counsel's performance was not deficient.
Defendant next argues that error occurred when the State
commented on defendant's nontestimonial in-court demeanor. In her
rebuttal argument, the prosecutor contrasted defendant's life with
that of the victim's. At the end of her argument, the prosecutor
stated that, in contrast to the plight of the victim, "here we are
20 months later and the defendant sits here in court amused by
everything that happened." Defense counsel objected to the comment,
and the trial judge sustained the objection.
Despite defendant's objection at trial, he did not raise
the issue in his post-trial motion, and accordingly he has failed
to preserve the issue for review. People v. Enoch, 122 Ill. 2d 176,
186 (1988). Defendant argues, however, that the waiver rule
expressed in Enoch does not apply to the instant case because the
basis for his objection at trial was a violation of his rights
under the fifth amendment. U.S. Const., amend. V.; Enoch, 122 Ill.
2d at 190.
We need not decide whether defendant avoids the
procedural bar. Generally, the prompt sustaining of an objection by
a trial judge is sufficient to cure any error in a question or
answer before the jury (People v. Hobley, 159 Ill. 2d 272, 315
(1994); People v. Baptist, 76 Ill. 2d 19, 30 (1979)), and we
believe that the same is true here. The trial judge promptly cured
any prejudicial impact by sustaining the defendant's objection and
ordering the comment stricken. People v. Enis, 163 Ill. 2d 367, 409
(1994). The court also instructed the jury that closing arguments
were not evidence. People v. Hooper, 133 Ill. 2d 469, 488 (1989).
Thus, any arguable error in the prosecutor's comments was cured by
the judge's actions. People v. Morgan, 142 Ill. 2d 410, 454 (1991).
Defendant next contends that the cumulative effect of the
allegedly improper prosecutorial comments denied him a fair trial
and warrants reversal of his convictions. Having found no errors,
we must reject defendant's contention.
Defendant next argues that the jury instructions on the
possession of a stolen motor vehicle count were insufficient and
constituted reversible error.
At the close of the guilt phase of defendant's trial, in
addition to defendant's convictions for murder and burglary, the
jury also returned a verdict of guilty on the charge of unlawful
possession of a stolen motor vehicle. Ill. Rev. Stat. 1991, ch.
95½, par. 4--103(a)(1). To sustain a conviction on a charge of
possession of a stolen motor vehicle, the State must prove that the
defendant possessed the vehicle; that he was not entitled to
possession of the vehicle; and that the defendant knew that the
vehicle was stolen. Illinois Pattern Jury Instructions, Criminal,
No. 23.36 (3d ed. 1992). Therefore, the defendant argues, to prove
that he knew the vehicle to be stolen, the State would first have
to prove that defendant had stolen the car, including the intent to
permanently deprive the owner of use of the vehicle. Accordingly,
defendant claims that the trial judge erred when he did not
instruct the jury on this element of the State's burden of proof.
However, as the State notes, defendant has waived this
contention because he did not offer an instruction on the element
of permanent deprivation at trial. As this court has previously
held, a party may not raise on appeal the failure to give an
instruction unless the instruction was tendered at trial.
Tannenbaum, 82 Ill. 2d at 180. Waiver is also appropriate here
because defendant failed to include this claim in his post-trial
motions. Enoch, 122 Ill. 2d at 186.
Under an exception to the waiver rule, substantial
defects in instructions are not waived by failure to make timely
objections thereto, if the interests of justice so require. 134
Ill. 2d R. 451(c). The plain error rule applies when the evidence
is closely balanced or when the error is of such magnitude that it
deprives the defendant of a fair trial. Carlson, 79 Ill. 2d at 576-
77.
We do not believe that the alleged deficiency in the
instructions rises to the level of plain error. The evidence on
this issue was not closely balanced, nor is the claimed error of
such magnitude that it deprived defendant of a fair trial. People
v. Fields, 135 Ill. 2d 18, 60 (1990). Consequently, defendant has
waived this claim.
Defendant further argues that counsel's failure to offer
the correct instruction or object to the instructions given at
trial on this issue constituted ineffective assistance. As we have
noted above, to prevail on a claim of ineffective assistance of
counsel, defendant must prove both that his counsel's actions were
deficient and that he was prejudiced. Strickland, 466 U.S. at 687,
80 L. Ed. 2d at 693, 104 S. Ct. at 2064.
Defendant's claim of ineffective assistance is without
merit. First, defendant fails to establish that he was entitled to
have the jury instructed in this manner. The lower court cases
defendant relies on are factually distinguishable. Unlike the cases
defendant cites, here there was no evidence to support a theory
that the car was not stolen or that defendant only intended to keep
the car temporarily. Accordingly, we cannot say defense counsel was
deficient for failing to request an instruction on the State's
burden of proof.
Even if we believed that counsel was deficient in failing
to tender the instruction at issue, defendant does not prove
prejudice. There was ample evidence to conclude that defendant
stole the car. The jury heard defendant's sister's testimony that
he told her that he broke into the dealership to steal a Corvette.
Defendant's physical therapist also testified that defendant told
her he had stolen a car. Therefore, we reject defendant's claim of
ineffective assistance of counsel.
As a result of our disposition of this case, we need not
consider issues presented in this appeal that pertain to the
sentencing phase of the trial. With respect to the first degree
murder convictions, the trial judge sentenced defendant on count I
and not on count II, felony murder. Accordingly, on remand,
defendant may be sentenced on the felony murder count. We also note
that defendant has not challenged the sufficiency of the evidence
of his guilt, and we find that evidence sufficient to support the
guilty verdicts. Consequently, there is no double jeopardy
impediment to a new trial on count I. People v. Brown, 169 Ill. 2d
132, 169 (1996); People v. Porter, 168 Ill. 2d 201, 215 (1995).
CONCLUSION
For the reasons stated, defendant's conviction on count
I is reversed, his death sentence is vacated, and the cause is
remanded to the circuit court of Du Page County for a new trial.
The judgment entered on the jury's verdict on count II is affirmed.
Defendant's convictions for burglary and for unlawful possession of
a motor vehicle and corresponding sentence of 14 years'
imprisonment are affirmed.
Convictions affirmed in part
and vacated in part;
death sentence vacated;
cause remanded.