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. 76406--Agenda 1--May 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DARRIN
W.
SHATNER, Appellant.
Opinion filed September 19, 1996.
JUSTICE HEIPLE delivered the opinion of the court:
Following a trial in the circuit court of Cook County, a
jury
found the defendant, Darrin Shatner, guilty of first degree
murder,
armed robbery, and arson. The defendant waived the jury for his
sentencing hearing. The trial court found defendant eligible for
the death penalty based on the aggravating factor that he killed
the victim in the course of another felony. 720 ILCS 5/9--1(b)(6)
(West 1994). Finding that there were no mitigating factors
sufficient to preclude the imposition of the death penalty, the
court sentenced defendant to death. The defendant's sentence has
been stayed (134 Ill. 2d R. 609(a)) pending direct appeal to this
court. Ill. Const. 1970, art. VI, ยง4(b); 134 Ill. 2d R. 603.
On appeal to this court, defendant argues that: (1) his
counsel was ineffective for failing to present a sufficient
defense
to the charge of felony murder; (2) his counsel was ineffective
for
failing to challenge his eligibility for the death penalty during
the eligibility phase of the sentencing hearing; (3) the trial
court erroneously limited the cross-examination of a State
witness;
(4) his waiver of a sentencing jury was not knowing and
intelligent; (5) he was denied a fair sentencing hearing by the
introduction of gang affiliation evidence; (6) he was denied a
fair
sentencing hearing by the introduction of religious practices
evidence; (7) his counsel was ineffective for failing to object
to
the State's introduction of evidence concerning defendant's gang
affiliation and religious practices; (8) the trial court erred by
considering his history of drug abuse solely in aggravation; (9)
the sentence of death is excessive and inappropriate given the
circumstances of the case; and (10) the Illinois death penalty
statute is unconstitutional. For the following reasons, we affirm
defendant's convictions and sentence.
BACKGROUND
Evidence at trial revealed the following. In the afternoon
of
September 1, 1986, defendant went to the home of a neighborhood
drug dealer, Joaquin, to purchase some cocaine. When he arrived,
he
met the victim, Daniel Schneider, and the victim's friend and
former coworker, Jean Rogoz. The victim invited everyone to his
condominium to eat and to watch a movie. Defendant and Rogoz
accepted his invitation.
The three arrived at the victim's residence. As the victim
began to prepare chicken for dinner, defendant and Rogoz left to
purchase some beer at a liquor store. Rogoz testified that on the
way back to the victim's condominium, defendant asked her whether
the victim had any valuables or money. After returning to the
victim's residence, Rogoz overheard the defendant question the
victim about whether he had anything they could sell in order to
purchase some cocaine. The victim responded that he did not want
to
sell any of his belongings.
Rogoz further testified that, after she had taken some
chicken
and a glass of milk from the kitchen and sat down in the living
room, she heard the victim cry out, "Jeannie, help me." Upon
turning around she saw that the defendant had grabbed the victim
from behind and was holding a six-inch pocket knife to his
throat.
Defendant began dragging the victim down the hallway towards the
bedroom and ordered Rogoz into the bedroom. In the bedroom,
defendant began to punch the victim with his fists until the
victim
was dazed. Defendant then left the room. According to Rogoz,
defendant returned with a wooden lamp, a phone cord, and some
cloth. Defendant bound the victim's legs with the cord and his
hands with the cloth. After next striking the victim in the head
with the wooden lamp, defendant began searching through the
victim's dresser drawers. When the victim sat up in bed and
looked
at Rogoz, defendant struck him again with the lamp until he fell
off the bed.
Rogoz stated that defendant next cut up the mattress and
threw
the stuffing around the room. The defendant then lit the bed and
stuffing on fire. He grabbed Rogoz and told her that she was
going
with him. Before they left the apartment, defendant took the
victim's VCR.
Thereafter, the defendant and Rogoz returned to Joaquin's by
bus. Rogoz claimed that she told Joaquin what had happened, but
he
told her that there was nothing he could do. Defendant and
Joaquin
exchanged the VCR for cocaine. After using the cocaine, defendant
and Rogoz took another bus ride to the apartment of a friend of
the
defendant, where they stayed the night.
The following day, defendant noticed a story in the
newspaper
regarding the victim's death. Rogoz testified that she asked him
why he burned the victim, and the defendant replied, "To free his
spirit." Defendant told Rogoz that he needed money to get away
and
Rogoz suggested that they set up a time to meet her brother, from
whom she could get some money.
At approximately 7 p.m., Rogoz and the defendant met her
brother in a parking lot. Rogoz testified that she was able to
get
away from the defendant at that time and that her brother took
her
to a friend's house where she called the police. Although she
could
not reach a detective that evening, she went to the police the
next
day.
Detective Ernest Halvorsen, with the Chicago police
department, testified that he was assigned to investigate the
murder of Daniel Schneider. After questioning Rogoz and the
defendant's parents, Detective Halvorsen obtained a warrant for
the
defendant's arrest. However, he was unable to locate the
defendant.
Three years later, in December of 1989, the FBI contacted
Detective
Halvorsen and offered its assistance in the investigation.
Eventually, in October of 1990, the FBI located the defendant in
Portland, Oregon, where he was arrested.
Special Agent James D. Russell, with the FBI, testified
about
the circumstances of the defendant's arrest. After he was placed
under arrest and transported to the Portland FBI office,
defendant
gave an oral statement to Russell. In this statement, he admitted
that he met Rogoz and the victim at Joaquin's apartment. However,
defendant claimed that it was Rogoz's idea to rob the victim and
that she repeatedly pressured him to commit the crime. Although
defendant initially resisted her entreaties, he accompanied Rogoz
to the victim's apartment and assisted her in carrying out the
robbery scheme because he was physically attracted to her.
Defendant admitted initiating the robbery by grabbing the victim
around the throat from behind in the kitchen and dragging him
towards the back bedroom. However, defendant stated that as he
was
dragging the victim towards the bedroom, Rogoz struck the victim
in
the head with a vase or jar and a lamp, despite defendant's
requests that she stop doing so. After defendant placed the
victim
on his bed, he checked his pulse to ascertain that the victim was
still alive. Defendant stated that he then took off his bloody
shirt and put on a shirt belonging to the victim. Defendant
claimed
that while he retrieved the VCR from the living room, Rogoz cut
up
the victim's bed and set it on fire. After they left the victim's
apartment, defendant and Rogoz returned to Joaquin's apartment.
They traded the VCR for cocaine.
Based on the information defendant provided, Russell
prepared
a written statement, which he read aloud to the defendant.
Defendant made a few changes to the statement and signed it.
Shortly thereafter, defendant was extradited to Illinois.
Defendant's trial commenced on May 13, 1993. In addition to
the testimony previously outlined, the State also presented the
testimony of Dr. Yuksel Konacki, who performed the autopsy on the
body of the victim. His examination revealed that the victim's
hyoid bone, the bone surrounding the larynx in the front of the
neck, was fractured. Based on his findings, Dr. Konacki opined
that
the primary cause of the victim's death was strangulation while
the
secondary cause was blunt trauma to the head.
Benjamin Lieu, defendant's former cellmate at the Cook
County
jail, also testified. He stated that, while they were
incarcerated
together, defendant told him that women were unreliable and that
the woman who was with him when he committed a murder panicked
and
did not help him at all. Defendant also told Lieu that he hit the
murder victim with a lamp, and that he had to hit him many times
because he had a very strong spirit.
Defendant testified on his own behalf at trial. His
testimony
was consistent with his statement to the FBI. He claimed that
Rogoz
instigated the events leading to the victim's death. Although
defendant conceded that he grabbed the victim from behind, he
claimed that it was Rogoz, not he, who struck the victim
repeatedly
and set him on fire. Defendant further stated that following the
events at the victim's apartment, Rogoz voluntarily accompanied
defendant to Joaquin's, where they ingested more cocaine.
Defendant
and Rogoz then spent the next few days together.
Mike Marshall, a former employee of the defendant's father,
also testified for the defense. He claimed that he witnessed the
defendant and Rogoz engaging in sexual relations at his father's
office the day after the murder occurred, and that defendant did
not appear to be restraining Rogoz.
Following deliberations, the jury returned a general verdict
of guilty to the charges of first degree murder, armed robbery,
and
arson. Since defendant had waived his right to be sentenced by
the
jury prior to trial, sentencing took place before the same judge
who presided over his trial.
After the first stage of the sentencing hearing, the judge
found defendant eligible for the death penalty based on the
aggravating factor that he killed another during the course of a
felony. At the second stage of the sentencing hearing, the State
presented evidence of defendant's prior criminal history,
including
his arrests for theft, criminal damage to property, battery and
resisting arrest. The State also presented testimony indicating
that defendant practiced rituals in his jail cell in which he
would
chant and toss a feather about while naked and that he read books
about satanic worship. The evidence also revealed that defendant
fought in jail and that he was charged for possessing a shank in
his cell.
In mitigation, defendant presented evidence indicating that
he
had felt unloved as a child, had begun using drugs when he was
13,
and that, prior to his arrest, had been employed as a carpenter
and
was in a long-term relationship with his current girlfriend, with
whom he had had a child. In allocution, defendant stated that he
knew he was part of the murder, but that he did not intend to
kill
the victim. Defendant also stated that he was not a devil
worshipper.
Following the sentencing hearing, the trial court found no
mitigating factors sufficient to preclude the imposition of the
death penalty and sentenced defendant to death.
ANALYSIS
I. Ineffective Assistance of Counsel
Defendant first contends that he received ineffective
assistance of counsel at trial because his attorney failed to
provide him any meaningful defense at all. Defendant impugns,
among
other things, his counsel's closing argument, wherein he stated:
"I submit to you that [defendant's] statement about
what
happened is the correct version of what happened, and
then if he's guilty of anything, he's guilty of
robbery.
What a tragedy to find this man guilty of murder that
was
committed by [Rogoz], and she walks out Scot-free."
As this language indicates, defense counsel suggested that if
defendant was guilty of anything, it was robbery, and not murder,
because defendant never killed the victim, nor had he intended to
do so. While acknowledging that this defense theory was
appropriate
to rebut the counts of intentional murder and knowing murder,
defendant argues that his counsel was ineffective because, by
conceding that defendant participated in a robbery during which
the
victim was killed, his counsel admitted felony murder.
A defendant alleging a violation of this sixth amendment
right
to effective assistance of counsel must generally meet the two-
pronged test established by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.
Ct. 2052 (1984), and recognized by this court in People v.
Albanese, 104 Ill. 2d 504 (1984). Under Strickland, the defendant
(1) must show that his counsel's performance fell below the
objective standard of reasonableness and (2) must demonstrate
that
there is a reasonable probability that, but for counsel's
unprofessional errors, 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. A court need not determine whether counsel's
performance was deficient before examining the prejudice suffered
if it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice. Strickland, 466 U.S. at
697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; Albanese, 104 Ill.
2d
at 527.
As an initial matter, defendant contends that because his
counsel wholly failed to subject the State's case to meaningful
adversarial testing, ineffective assistance of counsel can be
presumed without application of the Strickland test. See United
States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039
(1984). In so arguing, defendant places principal reliance on
People v. Hattery, 109 Ill. 2d 449 (1985).
The Hattery defense counsel, during opening argument,
proclaimed:
"Ladies and gentlemen of the jury, he [defendant]
did it. He did everything [the prosecution] just told
you. ***
We are not asking you to find [the defendant] not
guilty. At the end of your deliberations, you will find
him guilty of murder. We are asking you to consider the
evidence that you hear today and in the next few days
to
explain why he did the horrible thing that he did. Once
you have found him guilty, we will proceed and you will
find him eligible for the death penalty. The question,
and the only question facing you, will be whether to
impose the death penalty on Charles Hattery for trying
to
save the life of his family. Thank you." Hattery, 109
Ill. 2d at 458-59.
During the guilt-innocence phase of trial, defense counsel
advanced
no theory of defense, presented no evidence on defendant's
behalf,
and chose not to make a closing argument to the jury. This court,
finding that the defense counsel deprived Hattery of the right to
have the issue of his guilt or innocence presented to the jury as
an adversarial issue, concluded that defendant was denied the
effective assistance of counsel without applying the two-prong
Strickland test and ordered a new trial.
Defendant's contention that the defense tactics employed by
his counsel are analogous to those employed by the defense
counsel
in Hattery cannot withstand even the most superficial scrutiny.
The record reveals that the instant defendant's counsel was his
advocate throughout the proceedings. He presented both opening
and
closing arguments; cross-examined virtually all of the State's
witnesses; presented several witnesses, including the defendant,
on
the defendant's behalf; objected often and strenuously to the
admission of adverse evidence; and moved for a mistrial on
several
occasions. It is untenable to suggest that the proceedings below
approached the adversarial breakdown of the Hattery proceedings,
where defense counsel acted not as a advocate for the accused but
as a proponent for the prosecution. Accordingly, we reject
defendant's invitation to discard the two-prong Strickland test
in
reviewing his ineffective assistance claim.
We turn, then, to an examination of the first prong of the
Strickland test--whether defense counsel's performance fell below
an objective standard of reasonableness. Defendant, relying on
People v. Chandler, 129 Ill. 2d 233 (1989), argues that it did.
Chandler was charged with murder, residential burglary, and
arson.
After his arrest, he made a statement, introduced at trial, in
which he admitted to breaking into the victim's home, but stated
that it was his codefendant who had stabbed the victim.
Chandler's
trial counsel presented no witnesses on his behalf and Chandler
himself did not testify. During closing argument, defense counsel
conceded that Chandler had entered the victim's house, but argued
that he did not stab the victim.
This court held that defense counsel's performance in
Chandler
amounted to ineffective assistance of counsel. The Chandler court
reasoned that, even if counsel had succeeded in persuading the
jury
that defendant did not kill the victim, the jury was still
instructed to find defendant guilty of murder under the law of
accountability for felony murder. Chandler, 129 Ill. 2d at
246-47.
Thus, the Chandler court concluded that the jury, having been
instructed on both felony murder and accountability, had no
choice
but to find defendant guilty of murder, residential burglary and
arson.
In the instant case, as in Chandler, defense counsel did not
vigorously challenge the prosecution's claim that defendant
participated in the robbery of the victim. Defendant argues that
his counsel's alleged concession of his guilt in the robbery
during
closing argument, i.e., counsel's statement that "if he's
[defendant's] guilty of anything, he's guilty of robbery," should
compel us to conclude that he received ineffective assistance of
counsel.
However, Chandler does not mandate a finding of ineffective
assistance of counsel in the instant case.
Ineffective-assistance-
of-counsel claims must be determined on a case-by-case basis.
Indeed, the Supreme Court cautioned in Strickland that "a court
deciding an actual ineffectiveness claim must judge the
reasonableness of counsel's challenged conduct on the facts of
the
particular case, viewed as of the time of counsel's conduct."
Strickland, 466 U.S. at 690, 80 L. Ed. 2d at 695, 104 S. Ct. at
2066. We reiterate here that ineffective-assistance-of-counsel
claims must be viewed under the totality of the circumstances of
each individual case.
We also note that defendant has mischaracterized this
court's
holding in Chandler. The court's finding of ineffective
assistance
did not rest exclusively on Chandler's counsel's alleged failure
to
develop a theory of innocence. Rather, the Chandler court further
observed that the defense counsel's performance was deficient
because he failed to cross-examine several key prosecution
witnesses; cross-examined others in an extremely conclusory
manner;
and called no witnesses to testify, including defendant, even
though counsel had asserted that defendant would do so during
opening argument.
In contrast, defense counsel in the instant case
aggressively
cross-examined virtually every witness for the prosecution and
called several witnesses on defendant's behalf in an effort to
undermine the credibility of the State's witnesses and to bolster
that of the defendant. Ultimately, it was the defendant's own
statements, both to the FBI and on the witness stand, and not the
actions or strategy of his counsel, which undermined any claim of
innocence that defendant may have had. If a defendant enters a
not-
guilty plea in the face of overwhelming evidence of his guilt, we
are unwilling to find that his counsel was ineffective simply
because he failed to contrive a leak-proof theory of innocence on
defendant's behalf. To do so would effectively require defense
attorneys to engage in fabrication or subterfuge.
Here, defense counsel sought to minimize his client's
admitted
involvement in the robbery scheme and to shift the blame for the
robbery and murder onto Jean Rogoz, who had voluntarily
accompanied
defendant to the crime scene. Defense counsel aggressively
attacked
the credibility of Jean Rogoz and portrayed her as a calculating
cocaine addict who seduced defendant into assisting her in a
robbery during which she killed the victim. It is apparent that
defense counsel sought to convince the jury that defendant's
minimal involvement in the scheme warranted either a finding of
innocence or a conviction for robbery only. While this strategy
was
risky, it was strategy nonetheless, and perhaps the only strategy
which could have been seriously pursued given defendant's
admissible incriminating statements and the overwhelming evidence
of his guilt. Defendant now contends that his trial counsel
should
have presented a reasonable doubt theory, i.e., defendant played
no
role whatsoever in the crime which Jean Rogoz perpetrated.
However,
it is arguable that that strategy would have been even less
credible and less likely to succeed than the one his attorney
actually pursued. Under the circumstances of this case, defense
counsel's performance was not deficient with respect to his
proffered defense theory.
Defendant further contends that his counsel was ineffective
for failing to challenge defendant's eligibility for the death
penalty during the eligibility phase of the sentencing hearing.
During this phase, the State argued that defendant was
eligible for the death penalty based on the aggravating factor
listed in section 9--1(b)(6) of the Criminal Code of 1961, i.e.,
killing another individual during the course of a felony. In
order
to prove defendant eligible under this section, the State had to
prove beyond a reasonable doubt that (1) defendant had attained
the
age of 18 or more at the time of the offense and (2) the victim
was
killed during the course of another felony and defendant acted
with
the intent to kill the victim or with the knowledge that his acts
created a strong probability of death or great bodily harm to the
victim. 720 ILCS 5/9--1(b)(6) (West 1994). Toward this end, the
State introduced defendant's birth certificate and the jury
verdicts finding defendant guilty of murder and guilty of armed
robbery.
Defense counsel declined to make an opening statement in the
eligibility phase, presented no evidence, and made no argument
against a finding of eligibility for the death penalty. After
taking judicial notice that he was present when the jury verdicts
were returned and that judgment was entered on those verdicts,
the
sentencing judge found that defendant was eligible for the death
penalty.
Defendant claims on appeal that his counsel's inaction,
especially his failure to contend that defendant was ineligible
for
the death penalty because he did not have a culpable mental state
at the time of murder, constitutes ineffective assistance of
counsel. The State responds that his counsel's actions were not
ineffective, given that any argument in opposition to eligibility
was doomed to fail and that defendant cannot possibly show that
he
suffered prejudice under the second prong of Strickland.
We agree with the State. Defendant cannot show, under the
second prong of Strickland, that there is a reasonable likelihood
that, but for counsel's inaction, the result of the eligibility
proceeding would have been different. In People v. Johnson, 149
Ill. 2d 118 (1992), the jury was charged with instructions which
included intentional murder, knowing murder and felony murder,
whereupon it returned a general verdict. The sentencing judge
took
judicial notice of the jury's verdict and found defendant
eligible
for the death penalty. Defendant argued that the trial court
failed
to make any finding that defendant acted with the intent
necessary
to find him eligible under the statutory aggravating factors for
felony murder. This court rejected defendant's argument:
" ` "[W]here an indictment contains several counts
arising out of a single transaction, and a general
verdict is returned the effect is that the defendant is
guilty as charged in each count, and if the punishment
imposed is one which is authorized to be inflicted for
the offense charged in any one or more of the counts,
the
verdict must be sustained." ' " Johnson, 149 Ill. 2d at
157, quoting People v. Thomkins, 121 Ill. 2d 401,
455-56
(1988).
The Johnson court thus concluded that the general verdict raised
the presumption that the jury found the defendant guilty of
felony
murder.
Johnson undermines defendant's claim that, had his attorney
challenged his eligibility, the sentencing judge would have found
that he lacked the requisite intent under the aggravating felony
murder factor and was not eligible for the death penalty. After
taking judicial notice that he was present when the jury verdicts
were returned and that judgment was entered on those verdicts,
the
sentencing judge below ruled that defendant was eligible for the
death penalty. Since the jury verdicts encompassed the necessary
finding of intent, and since the trial judge took judicial notice
of these verdicts, his conclusion that defendant acted with the
requisite intent to be eligible for the death penalty cannot be
assailed. See Johnson, 149 Ill. 2d at 157.
Moreover, we note that the sentencing judge heard the
overwhelming evidence against defendant at trial. In finding the
defendant guilty of first degree murder, the jury rejected the
notion that defendant was not the primary actor in the victim's
death. There can be little doubt that the trial judge did as
well.
Indeed, prior to handing down defendant's sentence, the trial
judge
stated:
"I have listened to the evidence along with the
jury. *** [T]he initial mover, the sole mover and
almost
the total mover in all of the acts that culminated in
the
death of Danny Schneider were perpetrated by the
defendant Mr. Shatner. *** So let me set the facts
straight as I view the facts. I believe that you did it
from the get go. You planned it. *** You chocked [sic]
him. You have beat him. And the worse [sic] part about
the whole thing, is then you set him on fire. That, Mr.
Shatner, is outrageous."
From these comments, it is apparent that defendant's
contention that his eligibility hearing might have been different
had his counsel contested eligibility is speculative at best.
Defendant thus cannot satisfy the prejudice prong of the
Strickland
test, and his claim of ineffective assistance of counsel at the
eligibility phase must be rejected.
II. Denial of Defendant's Right to Cross-Examine a Witness for
the Prosecution
Defendant next argues that the trial court denied him his
sixth amendment right to confront and cross-examine witnesses
against him where the court limited his cross-examination of Jean
Rogoz. During cross-examination of Rogoz, defense counsel asked
her
whether the victim had stayed at Joaquin's house the night prior
to
his death. She responded that he had not. The following exchange
then occurred:
"Q. Do you recall that he was not there that
evening?
A. Right.
Q. So, it is your testimony that he came to pick
you
up the next morning?
A. I called him to come get me.
Q. Do you ever remember telling a police detective
and that would be McLaughlin that you had stayed
overnight there with Danny Schneider and had spent the
evening of August 31st to September 1st using drugs?
A. The first time I went in, I didn't tell them
the
whole truth.
Q. My question is, do you remember telling the
police officer--
A. I don't remember telling her.
Q. Let me show you something that might refresh
your
recollection.
MR. GOEBEL. Objection, judge.
THE COURT: Sustained. You can perfect it with the
officer.
MR. CHERONIS: I would think I could test her
recollection with anything.
THE COURT: No, not with that. Those are the
detective's words."
Defendant contends that, because the trial court sustained
the
objection to the introduction of the police report, defense
counsel
was unable refresh Rogoz's recollection as to her prior
statements
to the detective about what had occurred on the evening on August
31. Since he could not refresh Rogoz's recollection, defendant
continues, the trial court frustrated his attempt to compel Rogoz
to admit that she had made a prior inconsistent statement, i.e.,
that the victim stayed at Joaquin's residence the evening before
his death. Defendant maintains that the trial court thus violated
his right to confront a key prosecution witness, entitling him to
a new trial.
The record, however, belies defendant's contention that he
was
merely attempting to refresh Rogoz's recollection with the
introduction of the detective's report. Instead, it reveals that
defendant sought to impeach her with the report. As the trial
court
properly recognized, once Rogoz testified that she did not
remember
giving the particular statement to the detective, defendant could
only impeach her through the testimony of the detective to whom
she
allegedly made the statement. Defense counsel could not attempt
to
impeach Rogoz with the detective's written statement. See People
v.
Lucas, 132 Ill. 2d 399, 430 (1989).
Even assuming, arguendo, that defendant merely sought to
refresh Rogoz's recollection with the detective's statement, he
failed to lay a proper foundation in attempting to do so. It is
true, as defendant contends, that a police report may be used to
refresh recollection. Rigor v. Howard Liquors, Inc., 10 Ill. App.
3d 1004, 1010 (1973). However, it is fundamental that a witness'
memory can be refreshed only after it has been established that
the
witness has no memory concerning the facts in question. People v.
Kraus, 377 Ill. 539, 545 (1941). If a witness has testified that
his memory is exhausted, a written memorandum may be used to
refresh and assist his memory, but the manner and mode of
refreshing a witness' memory rests within the discretion of the
trial court. People v. Van Dyk, 40 Ill. App. 3d 275, 279 (1976).
In the instant case, defendant's cross-examination of Rogoz
did not establish that her memory was exhausted or that she
needed
the detective's report to refresh her recollection as to the
events
which took place the evening of August 31. Rather, Rogoz
testified
that she did not recall making one particular statement to a
police
detective. That, in and of itself, was not sufficient to fulfill
the foundational requirement that the witness' memory had been
exhausted. Thus, the trial court did not abuse its discretion by
refusing to allow defense counsel to refresh Rogoz's recollection
with the detective report.
III. Validity of Defendant's Waiver of a Jury for
Sentencing
Next, defendant claims that his waiver of his right to be
sentenced by a jury was not knowing and intelligent because the
trial court failed to admonish him that one juror could prevent
the
imposition of the death penalty. We disagree.
This court has repeatedly held that a defendant need not be
expressly advised of the nonunanimity rule, i.e., that the vote
of
a single juror will preclude the imposition of the death penalty.
People v. Ramey, 152 Ill. 2d 41, 59 (1992); People v. Erickson,
117
Ill. 2d 271, 295-96 (1987). Moreover, we have further declined to
impose a requirement that the trial court advise the defendant
that
the jury's decision to impose the death penalty must be
unanimous.
Ramey, 152 Ill. 2d at 59; People v. Evans, 125 Ill. 2d 50, 89-90
(1988).
Defendant raises no arguments which persuade us to
reconsider
these decisions. Our review of the record reveals that a valid
jury
waiver occurred insofar as the trial court explained to defendant
that he was waiving the right to have the jury consider the
capital
sentencing issues and that the sentencing decision would,
therefore, be made by the court alone. See Ramey, 152 Ill. 2d at
59. Accordingly, we reject the defendant's jury waiver argument.
IV. Introduction of Gang Affiliation Evidence
Defendant next claims that he was denied his due process
right
to a fair sentencing hearing and his first amendment right of
freedom of association where the State introduced evidence of his
gang affiliation. Relying on Dawson v. Delaware, 503 U.S. 159,
117
L. Ed. 2d 309, 112 S. Ct. 1093 (1992), defendant alleges that his
death sentence should be vacated since this evidence was not
relevant to any issue at sentencing.
Initially, the State counters that defendant has waived this
argument on appeal by failing to properly object to its
introduction at trial. During the State's examination of Benjamin
Lieu, who shared a cell with defendant while they were
incarcerated
in the Cook County jail, the following colloquy occurred:
"Q. Mr. Lieu, could you please tell the court
whether or not you ever talked about any gang
affiliation
with defendant?
A. Like can you be more specific, like talk about
a
gang activity in the cell or--
MR. CHERONIS: OBJECTION TO THAT.
A. O [sic] over over.
THE COURT: Overruled.
MR. GOEBEL: Q. Did you know whether or not he
belonged to a gang?
A. Yes, he does.
Q. How do you know that?
A. Because he has a tattoo on his back.
Q. What kind of tattoo?
A. A crown.
Q. Do you know what that symbolizes?
A. Yes.
Q. What [is] that?
A. A particular gang.
Q. What gang?
A. Gaylord.
Q. Did he claim he had any rank in the Gaylord
Gang?
A. Yes." (Emphasis added.)
The State maintains that defense counsel only objected to the
introduction of gang ACTIVITY evidence and not to the
introduction
of gang AFFILIATION evidence.
Although defense counsel's objection lacked specificity, we
will assume, arguendo, that defense counsel's objection went to
the
State's introduction of gang affiliation testimony in general,
not
merely the introduction of gang activity testimony, and that
defendant properly preserved his objection.
In Dawson, the Supreme Court held that a defendant's first
amendment right to freely associate is violated when the State
introduces evidence during a death penalty hearing regarding a
defendant's gang affiliation, when it is irrelevant to proving
any
aggravating circumstances. The Dawson court further held,
however,
that the erroneous introduction of such gang affiliation evidence
is subject to a harmless error analysis. Dawson, 503 U.S. at 168-
69, 117 L. Ed. 2d at 319, 112 S. Ct. at 1099.
We conclude that, if error occurred, the State's
introduction
of the gang affiliation evidence was harmless beyond a reasonable
doubt. See People v. Ward, 154 Ill. 2d 272 (1992). The sentencing
judge considered numerous aggravating factors in the instant
case,
including the defendant's principal role in the acts which
culminated in the victim's death; the premeditated nature of the
murder; the fact that the defendant set the victim on fire; the
defendant's criminal history; and the defendant's lack of remorse
after the crime. The contrary mitigating evidence was minimal,
consisting of testimony that defendant felt unloved as a child,
began experimenting with drugs at an early age, and that, prior
to
his arrest, was gainfully employed and had treated his current
girlfriend well. Moreover, the testimony concerning defendant's
gang affiliation was brief and isolated, and the sentencing judge
did not even mention it during his sentencing summation.
Therefore,
we conclude that the introduction of defendant's gang affiliation
evidence was harmless beyond a reasonable doubt.
V. Introduction of Religious Practices Evidence
Defendant next contends that he was denied his first
amendment
right to the free exercise of his religion where his religious
activities were introduced in aggravation during his sentencing
hearing. Specifically, defendant complains of his cellmate's,
Benjamin Lieu's, testimony concerning the religious rituals
defendant practiced and the religious materials defendant read
while in their cell.
The State argues that defendant failed to object to the
introduction of this testimony and, as a result, he has waived
the
issue for purposes of appeal. See People v. Enoch, 122 Ill. 2d
176,
186 (1988) (holding that to properly preserve an issue for
review,
both a trial objection and a written post-trial motion are
required). Our review of the record reveals that defendant failed
to make a contemporaneous objection to the introduction of his
religious activities at trial. We therefore find any error
waived.
Defendant contends, however, that this court should review
his
free exercise claim under the plain error doctrine. Even where a
defendant fails to properly preserve an issue for review, plain
errors affecting substantial rights may be considered if (1) the
evidence is closely balanced or (2) the error is of such
magnitude
that it deprives the defendant of a fair sentencing hearing.
People
v. Fields, 135 Ill. 2d 18, 60 (1990). Since we conclude that the
trial court did not err in admitting the religious activities
evidence, we shall not review defendant's claim under the plain
error rule.
In Dawson, the United States Supreme Court emphasized that
there is no per se bar to the admission of evidence concerning
beliefs or activities which are protected under the first
amendment; rather, the evidence is admissible if it bears a
relationship to the charged crime. Dawson, 503 U.S. at 165-66,
117
L. Ed. 2d at 317, 112 S. Ct. at 1098.
Dawson indicates, then, that evidence of constitutionally
protected religious activities is admissible if used for
something
more than general character evidence. Here, the testimony
concerning the religious rituals defendant practiced and the
religious materials he read was not introduced as mere character
evidence; rather, it was "tied" to the murder of his victim. See
Dawson, 503 U.S. at 166, 117 L. Ed. 2d at 317, 112 S. Ct. at
1098.
At trial, Jean Rogoz testified that when she asked defendant why
he
set the mattress on fire and burned the victim, defendant
replied,
"To free his spirit." Similarly, Lieu testified at trial that
defendant told him that he hit the victim several times because
the
victim's spirit was very strong. At the sentencing hearing, Lieu
testified that defendant chanted and tossed an eagle feather
about
while naked in his cell, claiming that these actions would cause
"the spirits to come." Not only did Lieu's testimony at the
sentencing hearing corroborate Rogoz's testimony at trial, it
also
shed light on defendant's peculiar statements following the
crime.
The evidence suggests that defendant's religious beliefs informed
his actions during the murder of the victim. As such, we find
unpersuasive defendant's assertion that the religious activities
evidence introduced at the sentencing hearing constituted nothing
more than irrelevant character evidence held impermissible under
Dawson. The trial court thus did not err in admitting this
evidence
in aggravation at the sentencing hearing.
VI. Defense Counsel's Failure to Object to
Aggravation Evidence
Defendant next argues, in anticipation of this court's
conclusion that his counsel failed to properly object to the
introduction of the gang affiliation or religious activities
evidence, that his counsel was ineffective for his failure to do
so. Since we have previously concluded that defense counsel's
objection to the gang affiliation evidence was sufficient to
preserve the issue for review, we need only address whether
defendant's counsel was ineffective for his failure to object to
the introduction of the religious activities evidence.
As previously noted, claims of ineffective assistance of
counsel are examined under the two-prong test established in
Strickland. Under Strickland, a defendant must show both that his
counsel's performance fell below the objective standard of
reasonableness and that there is a reasonable probability that,
but
for counsel's errors, 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.
Since we have determined that evidence concerning
defendant's
religious activities was admissible at the sentencing hearing,
defendant cannot argue that it was unreasonable for his attorney
to
fail to object to its admission. See People v. McCarthy, 213 Ill.
App. 3d 873, 887 (1991) (noting that whether to object is a trial
strategy, and to object when it would be overruled would be
futile). In that defendant cannot meet his burden under the first
prong of the Strickland test, his ineffective-assistance claim
must
be rejected.
VII. Defendant's History of Drug Abuse Used as
Aggravation
Defendant further claims that he was denied a fair
sentencing
hearing where the sentencing judge failed to consider defendant's
drug abuse history as a mitigating factor and instead deemed it
to
be aggravating.
This court has never held, and defendant directs us to no
cases in which an Illinois court has held, that a sentencing
judge
must consider defendant's drug use as a mitigating factor in
sentencing decisions, and we decline to so hold here. Simply
because the defendant views his drug abuse history as mitigating
does not require the sentencer to do so. In People v. Ward, 154
Ill. 2d 272 (1992), we considered an argument analogous to the
one
defendant now advances. The Ward defendant claimed that the
evidence of his troubled childhood was necessarily mitigating in
nature. In rejecting that argument, this court stated:
" `Defendant endeavors to persuade us that, because the
[Eddings] Court has said a sentencer cannot refuse to
consider relevant mitigating evidence presented by a
defendant, it has held that a sentencer must give it
some
mitigating weight. We disagree with the conclusion. The
Court has held only that when the sentencer is a judge,
the sentencer cannot refuse to hear evidence introduced
as mitigating, and cannot refuse to consider whether
that
evidence is in fact mitigating on the basis that the
sentencing judge believes the evidence is barred by law
from being considered as mitigating.' " Ward, 154 Ill.
2d
at 337, quoting People v. Henderson, 142 Ill. 2d 258,
338
(1990).
These observations are equally incisive here. Defendant does
not claim that the sentencing judge refused to hear or believed
he
was somehow precluded from viewing the drug abuse history
evidence
as mitigating. Rather, defendant essentially asserts that the
sentencer should have found that defendant's drug abuse history
in
part explained his criminal behavior. Underlying this premise is
that since drugs are partly to blame for his actions, the
defendant
is somehow less culpable and should not suffer the ultimate
penalty
for his criminal behavior. Simply stated, the sentencing judge
was
under no legal obligation to subscribe to this suggestion. To the
contrary, the sentencing judge was free to conclude, under the
circumstances, that defendant's drug history simply had no
mitigating value but was, in fact, aggravating. See Ward, 154
Ill.
2d at 337. Accordingly, we reject defendant's claim of error.
VIII. Excessiveness of the Death Penalty
Defendant next asserts that his death sentence is excessive
and inappropriate given the evidence of his rehabilitative
potential and other mitigating evidence presented at the
sentencing
hearing. We disagree.
Analysis of the propriety of the death sentence requires an
individualized consideration of the circumstances of the offense
and of the character and background of the offender. Eddings v.
Oklahoma, 455 U.S. 104, 110-12, 71 L. Ed. 2d 1, 8-9, 102 S. Ct.
869, 874-75 (1982); People v. Strickland, 154 Ill. 2d 489, 534
(1992). In deciding whether imposition of the death sentence in a
particular case is excessive, this court examines whether the
circumstances of the crime and the character of the defendant are
such that the deterrent and retributive functions of the ultimate
sanction will be served by imposing the death penalty. People v.
Tye, 141 Ill. 2d 1, 29 (1990).
The evidence presented at trial established that defendant
committed a cold-blooded, unprovoked murder: he strangled and
beat
the victim and then set him on fire in a scheme to steal his VCR
so
that he could purchase cocaine. Additionally, the State presented
significant evidence in aggravation. Defendant's criminal history
included theft, criminal damage to property, battery and
resisting
arrest. He showed little, if any, remorse for his actions and,
since being incarcerated, he has been involved in physical
altercations and a shank was found in his cell.
In contrast, the evidence defendant presented in mitigation
was minimal, consisting of testimony that defendant felt unloved
as
a child, that he began sniffing glue at the age of 13, and that,
during the four years he had fled the jurisdiction, defendant
procured gainful employment and a steady girlfriend. Under the
circumstances, the trial court's determination that the
aggravation
evidence outweighed the mitigation evidence is supported by the
record.
Defendant nevertheless urges this court to find that the
circumstances of the instant case are similar to those in a
limited
number of cases in which this court has found a death sentence
excessive where the offenses were triggered by or resulted from
substantial extenuating circumstances. See People v. Walcher, 42
Ill. 2d 159 (1969); People v. Crews, 42 Ill. 2d 60 (1969); People
v. Johnson, 128 Ill. 2d 253 (1989). We decline to do so. The
record
provides no support for defendant's assertion that he could not
control his actions at the time of the murder because of the
excessive quantity of cocaine he had ingested. To the contrary,
the
calculated manner in which the murder was perpetrated reveals
that
defendant was in control of his faculties at the time of the
offense. We therefore conclude that the trial court did not err
in
imposing the death penalty under these circumstances.
IX. Constitutionality of the Death Penalty
Lastly, defendant contends that the Illinois death penalty
statute is unconstitutional because (1) it allows the sentencer
to
weigh a vague aggravating factor, namely, "[a]ny other reason"
(Illinois Pattern Jury Instructions, Criminal, No. 7C.06 (3d ed.
1992)) a defendant should be sentenced to death; (2) it places
the
burden of proof on the defendant and precludes meaningful
consideration of mitigation; and (3) it does not sufficiently
minimize the risk of arbitrarily or capriciously imposed death
sentences. This court has considered and rejected these claims
repeatedly in other contexts. See, e.g., People v. Taylor, 166
Ill.
2d 414, 439 (1995) (rejecting the argument that a sentencer's
consideration of nonstatutory aggravating factors during the
second
stage of a capital sentencing hearing results in the arbitrary
imposition of the death sentence); People v. Page, 155 Ill. 2d
232,
283 (1993) (holding that the death penalty statute does not
preclude a sentencer from giving meaningful consideration to
mitigation evidence); People v. Kubat, 94 Ill. 2d 437 (1983)
(concluding that the death penalty statute ensures adequate
safeguards to prevent the arbitrary or capricious imposition of
the
penalty). Defendant raises no new arguments to persuade us to
reconsider these holdings.
CONCLUSION
For the reasons stated, the judgment of the circuit court of
Cook County is affirmed. The clerk of this court is directed to
enter an order setting Tuesday, January 14, 1997, as the date on
which the sentence of death entered in the circuit court of Cook
County is to be carried out. The defendant shall be executed in
the
manner provided by law. 725 ILCS 5/119--5 (West 1994). The clerk
of
this court shall send a certified copy of the mandate in this
case
to the Director of Corrections, to the warden of the Stateville
Correctional Center, and to the warden of the institution where
defendant is confined.
Affirmed.