Docket No. 76086--Agenda 2--November 1995.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. FRANK REDD, Appellant.
Opinion filed May 23, 1996.
JUSTICE MILLER delivered the opinion of the court:
Following a jury trial in the circuit court of Cook County, the
defendant, Frank Redd, was convicted of the murder and the rape of Aretha and
Leola Bea. At a separate sentencing hearing, the same jury found the
defendant eligible for the death penalty. The jury further determined that
there were no mitigating circumstances sufficient to preclude imposition of
that sentence. The judge sentenced defendant to death for the murders and to
a term of 60 years' imprisonment for each of the rape convictions. 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 affirm the judgment of the circuit court.
In 1985, at the close of defendant's first jury trial on the offenses
charged here, he was convicted of two counts of murder and two counts of rape
and sentenced to death. On direct appeal, this court reversed defendant's
conviction and sentence and remanded the cause to the circuit court for a new
trial and sentencing hearing. People v. Redd, 135 Ill. 2d 252 (1990). On
remand, the defendant waived his right to the assistance of counsel and
proceeded pro se at both the trial and the capital sentencing hearing.
Against defendant's wishes, a public defender was assigned to be present in
the courtroom as standby counsel throughout both phases of defendant's trial.
Defendant's convictions stem from events that occurred in the early
morning hours of March 4, 1984. Evidence at trial revealed that on March 3,
1984, Ruby Bea went shopping and left her three daughters, Aretha, age five,
Leola, age three, and Robertrese, age two, in the care of defendant's mother,
Earceaner Washington, at Mrs. Washington's apartment. When Ruby returned,
defendant and several other acquaintances were present at Mrs. Washington's.
Ruby stayed for awhile and visited. That evening, at Ruby's request,
defendant accompanied Ruby and her three children to Ruby's apartment located
at the rear of the third floor of 6712 South Halstead in Chicago.
Defendant was with Ruby in her apartment when later that evening all
three children went to sleep in one bed, fully clothed. After the children
were asleep, Ruby and defendant left the children and went downstairs to the
second-floor apartment where defendant's sister, Gloria Stewart, and Ruby's
brother-in-law, Leslie Bea, lived. When Ruby went downstairs, she did not
lock her apartment door because she knew that the street-level entrance to
the building was locked. In Gloria's apartment, everyone sat at the table
talking, except defendant, who paced the floor. Defendant left briefly, but
soon returned and began pacing again.
After defendant left a second time Ruby looked down the steps to see
that the street-level entrance remained locked. She did not see defendant as
she looked down the stairs. She assumed he had gone into one of the other
apartments in the building because insufficient time had passed for someone
to leave the building. Ruby was aware that defendant knew the occupant of the
apartment across the hall from Gloria's.
After approximately one hour, defendant returned to Gloria's apartment
and went directly to the bathroom. At trial, Leslie Bea testified that when
defendant returned the second time he had dark red spots on his shirt and red
spots on his hand. Defendant conversed with Gloria and Leslie in the bathroom
and then left again.
Ruby remained with Gloria and Leslie, and then later returned to her
third-floor apartment. When Ruby entered her apartment, she went to the
bedroom. She believed she saw two of her daughters, but not Aretha, sleeping
in the bed. As she looked for Aretha, Ruby saw blood on the kitchen floor by
the back door. Ruby ran down to the second floor, seeking Gloria's help to
find Aretha. After asking for help, but without finding Aretha, Ruby returned
to her apartment. When she went back into the bedroom to check on Leola and
Robertrese, Ruby discovered that Leola was dead.
Betty Gray, the occupant of the apartment opposite Ruby's apartment,
looked out of her door at about 1:30 a.m. on March 4, 1984, and saw that the
door to Ruby's apartment was open. Gray entered Ruby's apartment and heard
Ruby crying. Percy Hamilton, another apartment occupant in the same building,
was with Ruby. Gray ran back to her own apartment and telephoned the police.
She then returned to Ruby's apartment, where she found Robertrese sitting
unharmed at the end of the bed. Leola was under the covers, with her mouth
open and a garment twisted around her neck. Hamilton moved Leola into the
living room and attempted resuscitation. Gray unsuccessfully tried to remove
the item from around the child's neck.
Police arrived at Ruby's apartment at approximately 2 a.m. on March 4,
1984. When they entered they saw Leola's body on a small couch. The child was
naked from the waist down, had a cloth wrapped around her throat and had
blood coming from her vaginal area. In the dining room police found a child's
shoe, a pair of panties, a pair of small jeans and blood on a piece of
furniture. In the kitchen, the back door was ajar about 12 inches and had a
nonworking refrigerator lodged against it. Ruby testified that the door was
ordinarily secured shut with nails with the refrigerator pushed against the
door. A pane of glass was broken out of the same door and glass was scattered
on the kitchen floor.
A police officer walked out the back door, and from the third-floor
landing saw Aretha's body lying in the back yard. The child was naked from
the waist down and had a cloth wrapped around her throat. About 10 feet from
the body was a pair of panties. Other than the footprints the police officer
made when he approached the body, no other footprints were found within a 10-
foot radius around the body.
Lydia Booth testified that in March of 1984, she lived next door to
defendant's mother's apartment in a building approximately five blocks from
where Ruby and her family lived. At approximately 12:30 or 1 a.m. on March 4,
1984, Booth was standing on the landing, near the entrances to her and
defendant's mother's apartment. As Booth saw defendant come up the stairs,
she noticed he was wearing blue jeans with blood on them. Booth asked
defendant what had happened and defendant replied that he had fallen. He then
he went into his mother's apartment. Defendant left approximately 20 minutes
later. He wore a different pair of pants and he carried a bag. Booth asked
defendant why he had changed his clothes, but defendant did not answer. Booth
then asked defendant if he was going to the lounge where his brother worked.
Defendant replied that he was going to the lounge but "he had to make a run
first."
Several witnesses, including people from the apartment building,
defendant, and his mother, were questioned at police headquarters on the
morning of March 4, 1984. When police first interviewed defendant, he
admitted he had been with Ruby Bea on March 3, but stated that he went home
after partying for awhile.
After their initial interview with defendant at the police station,
police went to defendant's mother's home and recovered a jacket, a sweater
with a wet front and a pair of undershorts they found hanging in the bathroom
with the sweater. The sweater and jacket matched the description of the
clothing defendant was seen wearing at the victims' apartment building on the
evening of the offenses. After police recovered the clothing, they gave
defendant Miranda warnings. Defendant then gave police an account of his
activities on the evening of March 3 that differed from his original story,
but he continued to deny any involvement in the offenses.
Late in the evening of the March 4, police recovered a pair of bloody
blue jeans from the dumpster in the alley behind the lounge where defendant's
brother worked. Police again advised defendant of his rights, confronted him
with the evidence and the witnesses' statements. Defendant denied any
involvement, but then stated that he remembered being alone with the three
children and that one was dead on the couch, but that was all that he could
recall.
At approximately 9:30 p.m. that day, defendant confessed to having had
intercourse with the victims and then strangling them. Defendant wrote a
statement in his own hand that was witnessed and initialed by two assistant
State's Attorneys. Defendant also told police that he wore blue jeans during
the offenses, and identified the blue jeans that police recovered from the
dumpster as the same pants he wore on the night of the murders.
The autopsy performed on Leola revealed 11 instances of external injury,
including a ligature impression and abrasions on the neck, abrasions on the
chest, and abrasions on the forehead. An internal exam of Leola revealed she
had an extensive laceration or tear of the posterior wall of the vagina
extending to the border with the rectum. All injuries were recent, and the
doctor who performed the autopsy determined that Leola was alive at the time
she sustained the injury to her vaginal wall. The doctor also concluded that
the cause of Leola's death was strangulation.
The autopsy of Aretha revealed 22 evidences of external injury,
including 14 on the face. The doctor who performed the autopsy said the
injuries were recent in origin, and were consistent with someone punching
Aretha in the face. The internal exam revealed that the entrance to Aretha's
vagina was bloody, and her hymen was completely obliterated. The doctor
stated that these injuries were consistent with her being subjected to
intercourse by an adult male while Aretha was alive. The autopsy on Aretha
also revealed head trauma, most significantly a hemorrhage and a fractured
skull, consistent with her head being struck by a hard object. The doctor
concluded that Aretha died as the result of strangulation with injuries to
the brain and skull as significant contributing conditions.
Forensic testing on semen found in Leola's vagina revealed that the
genetic markers in the semen were consistent with defendant's. No semen was
present in Aretha's vagina, but blood was present.
Panties found at the scene and identified as Leola's were stained with
semen containing genetic markers consistent with defendant's. Blood samples
collected from the kitchen floor were consistent with Aretha's blood.
Forensic testing revealed a semen stain on the inside fly panel of the
blue jeans recovered from the dumpster behind the lounge where defendant's
brother worked. Diffuse bloodstains on the jeans were consistent with the
blood of Leola Bea. Hair samples found in the rear pocket of the jeans were
consistent in all morphological characteristics with a hair sample taken from
the defendant after he was arrested. In addition, flakes of glass scraped
from the jeans were found to have a common origin with samples of glass taken
from the rear door window of Ruby's kitchen. Glass fragment taken from the
kitchen were marked with human blood consistent with that of Aretha and
Leola.
A bloodstain was found on the sleeve of the sweater recovered from
defendant's mother's house, but it was too minute to determine its origin.
Clippings from defendant's fingernails tested positive for traces of blood;
however, the amount of blood was insufficient to determine the type.
The defendant called only one witness, Howard Anderson, president of the
Midwest Association for Sickle Cell Anemia. Defendant apparently called
Anderson in an attempt to rebut forensic evidence regarding the
characteristics of samples of defendant's blood. However, Anderson's
testimony consisted only of his acknowledgement that in response to a letter
from defendant, Anderson provided defendant with literature and information
regarding certain blood characteristics.
Defendant declined to testify on his own behalf. Before the defense
rested, the State and defendant agreed to several stipulations. The State
stipulated to the fact that blood had been withdrawn from defendant and that
in July 1992 defendant's blood sample was analyzed to determine the presence
of certain characteristics and sickle cell anemia. The State also stipulated
to the fact that defendant had been strip-searched at the police station.
At the close of evidence, the jury returned a verdict finding defendant
guilty of the rape and murder of both Aretha and Leola Bea. Ill. Rev. Stat.
1983, ch. 38, par. 9--1(a); Ill. Rev. Stat. 1983, ch. 38, par. 11--1(a). The
following day, the matter proceeded to a capital sentencing hearing before
the same jury.
At the first stage of the sentencing hearing, the State presented
evidence that defendant was over the age of 18 at the time of the offenses
charged. The courtroom clerk testified that the previous day's verdict forms
reflected defendant's convictions of rape and murder in this case. The jury
found defendant eligible for the death penalty on the basis of defendant's
convictions for murder of an individual under 12 years of age whose death
resulted from exceptionally brutal or heinous behavior indicative of wanton
cruelty (Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(7)), defendant's
convictions for multiple murders (Ill. Rev. Stat. 1983, ch. 38, par. 9--
1(b)(3)), and the murder-in-course-of-felony aggravating factor (Ill. Rev.
Stat. 1983, ch. 38, par. 9--1(b)(6)).
At the second stage of the sentencing hearing, the doctor who performed
the autopsies on Aretha and Leola testified again and described the victims'
injuries, their causes of death and his conclusions regarding the extent of
pain each victim suffered.
The prosecution also presented evidence of defendant's prior offenses.
Iola Warren testified that in 1979 defendant strangled and stabbed her mother
and raped Iola. Geraldine Warren testified regarding the same events. Henry
Van Tholen testified that defendant stole his car in 1973, and that defendant
received a sentence of three years' probation for that offense. Renard
McCray, testified that while he and defendant were both inmates at Pontiac
Penitentiary in 1980, defendant forcibly subjected McCray to anal
intercourse, threatened to kill him, and stabbed him in the neck with a
shank. McCray acknowledged that he had a lengthy criminal record, and was
presently in custody while charges were pending against him for possession of
a stolen auto and theft.
The State also presented certified copies of defendant's prior
convictions. The evidence established that defendant had previously been
convicted of and was sentenced to probation for burglary in 1973, theft in
1974, and sentenced to prison for grand larceny in 1976 and rape and
attempted murder in 1979.
The State stipulated to the contents of a medical report from Pontiac
Penitentiary. The report stated that the resident (McRay) was examined on
August 30, 1980, and no objective physical evidence of anal rape was
observed. The State further stipulated to the contents of an emergency room
report regarding Geraldine Warren and offered by the defense. The date of the
report was not contained in the record, but the contents essentially did not
contradict Geraldine Warren's testimony except that the report stated she did
not know her attacker.
Defendant declined to present witnesses in mitigation, but did make a
closing argument. At the conclusion of the sentencing hearing, the jury found
that there were no mitigating circumstances sufficient to preclude imposition
of the death penalty. In a subsequent hearing, the trial judge sentenced
defendant to death for the murders of Leola and Aretha Bea and to a term of
60 years' imprisonment for each of the rape convictions. Defendant seeks
review of his convictions and sentence in this court. Ill. Const. 1970, art.
VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).
I. TRIAL ISSUES
A. Waiver of Right to Counsel
In his first trial on the present charges, defendant was represented by
the office of the public defender. In this trial on remand, defendant
represented himself at both the guilt and sentencing phases with appointed
standby counsel from the public defender's office. The pretrial period in
this case extended over three years due largely to the defendant's voluminous
motions and his requests for continuances.
In his initial court appearance on remand defendant told the court he
did not want the public defender to represent him, but he wished to hire a
private attorney. Approximately two weeks later defendant told the court that
he was unable to hire a private attorney and filed a motion to proceed pro
se. The judge admonished defendant of the charges against him and the
possible penalties, including the death penalty. When the judge asked
defendant whether he had been represented by counsel at his first trial,
defendant named the assistant public defenders who had previously represented
him. The judge then told defendant he had a right to counsel and a right to
appointed counsel if he was indigent. The judge warned defendant that self-
representation was unwise. Each time the judge asked defendant if he
understood, defendant answered affirmatively. Several times the defendant
interjected that he did not want the public defender to represent him and
that he or his family would be hiring a lawyer. Defendant repeated his desire
to represent himself until he hired an attorney.
The trial judge found that defendant understood the nature of the
charges against him, the possible penalties, and his right to counsel. The
judge stated that he found that defendant had freely and intelligently waived
his right to counsel. The judge noted, however, that defendant was continuing
his efforts to hire private counsel.
One month later, defendant's motion for substitution of judge was
granted. During the next six months, defendant appeared before several
judges, one of whom subsequently left the bench and another judge who was
temporarily assigned to the call. Defendant introduced himself as, "Frank
Redd, pro se" to each judge. Both judges questioned defendant about his pro
se status, and several times defendant told the court that he was
representing himself while he attempted to hire an attorney. Defendant was
granted numerous continuances at his request.
When defendant's case was permanently assigned to the next judge, she
inquired about his pro se status. During the discussion, defendant told the
judge he was representing himself and was trying to hire a lawyer. In his
next court appearance, defendant told the judge he could not hire an attorney
and he told her that he "rejected the public defender." The judge advised
defendant against proceeding pro se and urged him to accept an appointed
attorney as standby counsel. The judge asked defendant about his level of
education. She also inquired who the private attorneys were that defendant
spoke with and offered to try and have one of them appointed to represent
defendant. Defendant refused to divulge the attorneys' names. The trial judge
repeatedly advised defendant against representing himself. She also told
defendant that if he did not hire a private attorney or allow the public
defender to represent him and he proceeded pro se, she would appoint standby
counsel to advise defendant. She then granted a continuance to allow
defendant to make further attempts to secure private counsel.
During the next several months, despite the judge's admonishments
against proceeding without an attorney, defendant continually asserted his
desire to represent himself. He participated in discovery and filed numerous
motions. When the judge stated that she would appoint counsel, defendant
cited case law and advised the court that he would consider appointed counsel
as only standby counsel.
A few months later, the judge appointed a member of the public
defender's office to consult with defendant concerning his case. Defendant
agreed to discuss with the assistant public defender the role defendant
wished counsel to assume in his case. When defendant next appeared before the
judge, the representative of the public defender's office with whom defendant
met was also present. The judge articulated the limits of standby counsel's
participation. The assistant public defender also addressed the court and
stated that he would only function as an advisor and would not actively
assist in preparing the defense. Defendant stated several more times that he
did not want a lawyer and that he wanted to represent himself. Defendant
indicated that he would need to talk to the assistant public defender again,
but the record does not contain anymore discussion regarding appointed
counsel's role.
Over one year before trial, the judge took a leave of absence.
Defendant's case was assigned to another judge, who later became the trial
judge. In his first appearance before the trial judge, defendant stated that
he was representing himself. The judge inquired if the public defender had
been appointed for consultation. The judge also asked if defendant had been
advised "in detail about the perils of going pro se." The assistant public
defender, acting as standby counsel, answered "yes" to both questions.
In subsequent court appearances defendant continued to file and argue
numerous motions. The trial judge also asked defendant if he was exercising
his right to defend himself, and defendant said yes. The trial judge advised
defendant that the State was seeking the death penalty. He also told
defendant that he could have an attorney represent him "free of charge," and
strongly advised defendant not to represent himself. The judge asked
defendant the extent of his education. The judge also noted on the record
that he was aware that defendant had previously been through a criminal
trial. The judge told defendant that if he chose to represent himself he
would be treated as an attorney, without "special privileges." The judge then
allowed defendant to consult with standby counsel. After the recess defendant
requested that the court appoint counsel to represent him, but he specified
that he did not want the public defender appointed. The judge agreed and
appointed an attorney from the private bar.
Defendant's case was continued repeatedly to allow appointed counsel to
prepare. However, defendant continued to file pro se motions, and eventually
asked the court to dismiss his appointed counsel, stating that he only wanted
the private attorney to function as standby counsel. The court dismissed the
private counsel and then reappointed standby counsel from the public
defender's office. Defendant represented himself at trial with the public
defender as standby counsel.
Defendant's first allegation of error on appeal is that his waiver of
sixth amendment right to counsel (U.S. Const., amend. VI) was not knowingly
and understandingly made, warranting reversal of his convictions and
sentence.
As a preliminary matter, we address the State's argument that defendant
waived the issue of the validity of his waiver of counsel because it was not
raised in the post-trial motions. People v. Enoch, 122 Ill. 2d 176, 186
(1988).
Immediately after sentencing, the State Appellate Defender was appointed
to represent defendant on appeal. Four days later, appellate counsel filed a
notice of appeal. After appellate counsel filed the notice of appeal,
defendant filed a pro se motion for a new trial. The trial court never ruled
on the pro se motion. However, one year after the notice of appeal was filed,
and while defendant's case was on direct appeal to this court, appellate
counsel motioned for a limited remand to the trial court for the purpose of
filing and disposing of post-trial motions. We granted the motion and counsel
filed a post-trial motion and a post-sentencing motion, both of which the
trial court denied after a hearing.
The issue of defendant's waiver of counsel was not contained in
defendant's pro se motion for a new trial. It was, however, timely raised in
the motions appellate counsel filed on remand. Accordingly, the issue is
preserved for review.
Defendant argues that his waiver of counsel was not valid because the
trial court failed to adequately assess his ability to understand the choice
he was making. Defendant claims that the trial court was obligated to
specifically ask defendant his level of education, his prior legal
experience, and probe his mental and emotional capacity to represent himself.
In Faretta v. California, the Supreme Court held that the sixth
amendment right to counsel (U.S. Const., amend. VI) implicitly provides for
the right of self-representation in criminal proceedings. Faretta v.
California, 422 U.S. 806, 821, 45 L. Ed. 2d 562, 574, 95 S. Ct. 2525, 2534
(1975). However, the defendant's waiver of counsel must be voluntarily,
knowingly, and understandingly made. See People v. Baker, 94 Ill. 2d 129, 136
(1983); People v. Baker, 92 Ill. 2d 85, 91 (1982); People v. Hessenauer, 45
Ill. 2d 63, 68 (1970). Before a criminal defendant's waiver of counsel will
be deemed valid the trial court must determine that defendant has the ability
to understand the proceedings, that he knows the significance and
consequences of his decision, and that his waiver was not coerced. See
Godinez v. Moran, 509 U.S. 389, 401 n. 12, 125 L. Ed. 2d 321, 333 n. 12, 113
S. Ct. 2680, 2685 n. 12 (1993). The entire record should be considered in
determining whether the waiver was knowingly and understandingly made. People
v. Barker, 62 Ill. 2d 57, 59 (1975).
We believe that the court sufficiently assessed defendant's ability to
understand his waiver of counsel and appropriately found that defendant's
waiver of counsel was knowingly and understandingly made. A defendant's
background, experience and conduct are all factors to consider when
determining if a valid waiver of counsel has been made. Johnson v. Zerbst,
304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023 (1938). Two
different judges, on separate occasions, specifically asked defendant on the
record what level of education he had achieved. In addition, the court was
able to observe defendant's demeanor, appearance, and statements to otherwise
evaluate whether defendant had the ability to understand the choice he was
making in choosing to proceed pro se.
Defendant's experience with the legal system is also readily apparent
from the record. In an early pretrial appearance, defendant interrupted the
judge's preliminary admonishments and recited Rule 401(a) verbatim. 134 Ill.
2d R. 401(a). When the same judge warned defendant that if he was convicted,
he could be eligible for an extended term of imprisonment, defendant informed
the court himself that he had a prior Class X offense. The record also
indicates that at least two of the judges defendant appeared before were made
aware through the discovery process of defendant's previous convictions. Each
judge that defendant appeared before was aware that defendant had a previous
capital trial in this matter and that he was represented by appointed counsel
at that trial. On this record, we conclude that the trial court considered
defendant's demonstrated familiarity with the legal system and properly
concluded that defendant could understand the significance and consequences
of his decision to waive counsel.
Defendant's argument that no initial determination of his mental
capacity to knowingly waive counsel was made is also inaccurate.
Specifically, the record demonstrates that the judge who initially admonished
defendant had adequate opportunity to observe defendant and determine his
ability to make a knowing waiver of the right to counsel. Defendant
demonstrated a rational understanding of the charges against him and the
possible penalties. Moreover, defendant coherently participated in all phases
of the pretrial and trial proceedings and responded lucidly to each judge's
inquiries. Defendant filed numerous motions, examined witnesses and actively
presented a defense.
Defendant further contends that the trial judge erred when he did not
specifically question defendant's mental capacity to waive counsel after
defendant told the judge that at defendant's first trial his counsel raised
the general issue of defendant's sanity.
Three years into the pretrial period in this trial defendant filed a
motion for appointment of standby counsel other than the public defender.
When discussing the motion for new standby counsel, defendant informed the
trial judge that the basis of defendant's dissatisfaction with the public
defender was that in his first trial on these charges defendant's appointed
counsel from the public defender's office filed a motion on defendant's
behalf requesting that defendant be examined to determine his sanity at the
time of the offenses, his fitness to stand trial and any mitigating factors
as to the death penalty. Defendant contends that the failure of the trial
judge in this case to make appropriate inquiries regarding defendant's mental
capacity to waive counsel warrants reversal of his convictions and a new
trial.
We disagree. Competence to waive counsel is measured by the same
standard as competence to stand trial. People v. Mahaffey, 166 Ill. 2d. 1, 19
(1995), citing Godinez v. Moran, 509 U.S. 389, 125 L. Ed. 2d 321, 113 S. Ct.
2680 (1993). In Illinois, a defendant is presumed competent to stand trial.
725 ILCS 5/104--10 (West 1992). The presumption is rebutted by evidence that
defendant is unable to understand the nature and purpose of the proceedings
against him or assist in his defense. 725 ILCS 5/104--10 (West 1992).
In this case, defendant's conduct demonstrates an ability to understand
the proceedings and to assist in his own defense. Our review of the record
reveals that defendant's interactions with the court before and during trial
did not raise a bona fide doubt of his fitness. As noted previously,
defendant vigorously presented his defense. Further, the trial judge stated
on the record that defendant "seemed very, very lucid." On this record we
believe that the court evaluated defendant's mental capacity to waive counsel
and properly granted defendant's motion to proceed pro se.
We also reject defendant's allegation that the numerous rambling motions
he filed during the three year pretrial period should have caused the court
to question his mental competency to waive counsel. Our review of the record
indicates that defendant's motions arguably exhibit a lack of comprehensive
knowledge of the law and principles of criminal procedure. Nonetheless,
neither the written motions nor the record of defendant's defense of the
motions demonstrate irrationality. Defendant's ability to articulate his case
or to precisely motion the court are merely measures of his proficiency or
lack thereof as a lawyer. His ability to represent himself is not indicative
of his competence to choose self-representation. Godinez, 509 U.S. at 400,
125 L. Ed. 2d at 333, 113 S. Ct. at 2687. Therefore, defendant's numerous and
voluminous motions or his imprecision in expressing himself as an attorney do
not demonstrate here that defendant lacked the mental capacity to waive
counsel.
Defendant next argues that his waiver of counsel was invalid at
sentencing where the trial court failed to readmonish him of his right to
counsel after the verdict and before sentencing. This court has repeatedly
upheld the "continuing waiver" rule (People v. Johnson, 119 Ill. 2d 119, 147
(1987); People v. Baker, 92 Ill. 2d 85, 95 (1982)), which provides that
absent significantly changed circumstances or a later request for counsel, an
intelligently and knowingly made waiver of counsel applies to all phases of
trial. Baker, 92 Ill. 2d at 95.
Defendant first argues that the court should have readmonished him prior
to sentencing because the admonishments he received regarding waiver of
counsel prior to trial were inadequate. As we have stated, we believe the
court properly evaluated defendant's ability to make a knowing and
understanding waiver of his right to counsel and find that the admonishments
given him before accepting defendant's waiver of counsel were sufficient.
Defendant next claims that the mere nature of capital sentencing compels
readmonishment of pro se capital defendants before sentencing. However,
defendant offers no support for his argument. Defendant's brief citation to
Woodson v. North Carolina, 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978
(1976), is unpersuasive. In Woodson, the Supreme Court held that a North
Carolina statute imposing a mandatory death sentence on persons convicted of
first degree murder was unconstitutional because it allowed unbridled jury
discretion. Woodson, 428 U.S. at 305, 49 L. Ed. 2d at 961-62, 96 S. Ct. at
2991-92. In reaching its conclusion, the Court emphasized the qualitative
difference of the death penalty from a sentence of imprisonment. Woodson, 428
U.S. at 304-05, 49 L. Ed. 2d at 961, 96 S. Ct. at 2991. We agree that the
statement in Woodson reflects the need for individualized sentencing
determinations, but this general distinction does not support defendant's
specific argument that all pro se capital defendants must be readmonished
before sentencing. We have previously upheld the "continuing waiver rule" in
capital cases (People v. Simpson, No. 76889 (March 21, 1996); People v.
Johnson, 119 Ill. 2d 119 (1987)) and defendant offers no persuasive reason to
reexamine these holdings. We also note that defendant was subjected to a
capital sentencing hearing in his first trial on these charges and was
therefore aware of both the process and his right to counsel at sentencing.
Defendant's next contention is that the issue of defendant's sanity,
raised by his appointed counsel in his first trial, coupled with his behavior
in this trial were circumstances that should have caused the court to
reexamine his capacity to proceed pro se at sentencing. We have noted,
however, that there is no suggestion in the record that defendant was
suffering from any condition that would impair his ability to knowingly and
understandingly waive counsel for the purposes of this trial. Defendant's
suggestion that his sanity may have been questioned in a previous trial is
not a circumstance that would require the court to reexamine defendant's
waiver of counsel before sentencing, absent indications of irrationality at
the present trial.
Defendant also argues that the lapse of time between the beginning of
the trial period in this case and sentencing required that he be
readmonished. A lengthy delay between trial phases is one circumstance that
would possibly necessitate readmonishment of a pro se defendant prior to
sentencing. People v. Baker, 92 Ill. 2d 85, 93-94 (1982), citing Davis v.
United States, 226 F.2d 834, 840 (8th Cir. 1955). Here, defendant's pretrial
period stretched over three years, largely as a result of defendant's
requests for continuances. However, the court's admonitions and efforts to
have defendant accept appointed counsel continued until two months before
trial. Further, once the trial commenced no delay occurred between the guilt
phase and sentencing, which was held the day following the guilty verdict.
Defendant's reliance on Schell v. United States, 423 F.2d 101 (7th Cir.
1970), is distinguishable because the six-month delay in Schell occurred
between trial and sentencing, unlike the instant case where sentencing
immediately followed defendant's conviction.
We also reject defendant's contention that he should have been
readmonished prior to sentencing because the court's initial admonishment did
not literally warn him that the waiver of counsel extended to "all phases of
the proceedings." The continuing waiver rule does not rest on the trial
court's use of specific language in the initial admonishment. People v.
Johnson 119 Ill. 2d 119, 145-46 (1987). Here, the court's admonitions prior
to accepting defendant's waiver of counsel included a warning that defendant
could face the death penalty. Defendant had also been represented by
appointed counsel during the capital sentencing hearing of his first trial on
these charges. Defendant cannot now argue that he is not familiar with his
right to counsel at sentencing.
B. Testimony of Ruby Bea
Defendant next claims that he was denied a fair trial because the
prosecutor was allowed to elicit from the mother of the two victims remarks
that defendant believes were prejudicial. Although this issue was raised in
defendant's post-trial motion, he failed to offer a contemporaneous objection
at trial and has therefore waived the claim. It is well established that both
a trial objection and a written post-trial motion raising an issue are
required to preserve for review matters that could have been raised at trial.
People v. Mahaffey, 166 Ill. 2d 1, 27 (1995).
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 evidence of defendant's guilt was overwhelming, including
defendant's detailed confession which was corroborated by accounts of events
given by several witnesses. Additionally, substantial physical and
circumstantial evidence was presented and uncontradicted at trial.
Nor do we believe the alleged error can be described as substantial. The
prosecutor asked Ruby Bea if she had problems since the death of her
children. Ruby responded that she was diagnosed with post-traumatic syndrome
and alcoholism. The prosecutor then asked if these problems were the reason
Ruby had difficulty remembering events, and Ruby answered yes. We do not
believe this isolated comment from the victims' mother, in response to a
query about her memory difficulties, was so substantial as to deprive
defendant of a fair trial.
C. Prosecutorial Remarks
Defendant next claims that numerous remarks made by the prosecutor
during the guilt phase of the trial were improper. Defendant believes that
the remarks deprived him of a fair trial and warrant reversal of his
convictions.
During defendant's pro se examination of one of the investigating police
officers, defendant probed the witness' knowledge of defendant's interactions
with the victims' family on the night of the offenses. The colloquy was
confusing, and the prosecutor objected, in an apparent attempt to clarify the
time period to which defendant was referring. The following exchange then
occurred:
"PROSECUTOR: Objection. Is he talking about before or after he
killed the children?
THE COURT: Objection sustained.
DEFENDANT: Object to that statement.
THE COURT: The question posed by the State is stricken and
disregarded by you. Go ahead. Move on."
Defendant contends that the prosecutor's remarks inflamed the jury's
passion and prejudiced the jury against the defendant, depriving him of a
fair trial. We agree that the assistant State's Attorney's remark was
improper. However, the prompt sustaining of an objection by a trial judge is
ordinarily 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 the same is true of the prosecution's
remark. The trial judge cured any prejudicial impact the comment may have had
on the jury by sustaining the defendant's objection and ordering the comment
stricken. People v. Enis, 163 Ill. 2d 367, 409 (1994).
Defendant next argues that the prosecution misstated the evidence in his
closing remarks when he told the jury that defendant had made a confession to
a neighbor of the victims.
At trial, Betty Gray testified that on March 4, 1984, at approximately
1:30 a.m., she was leaving Ruby Bea's apartment after Leola had been
discovered dead, but before Aretha's body had been found. Gray was in the
hallway when defendant charged up the stairs and asked where the individual
was that "killed the kids." Gray, who at that time was aware of only one
child's death, asked defendant how he knew what had happened. Defendant did
not respond and then left the building. On cross-examination, Gray stated
that she did not know whether anyone had informed defendant that something
had happened to the children.
In his rebuttal argument at the close of the guilt-innocence phase of
trail, the prosecutor referred to this comment as defendant's confession to
Betty Gray. The court overruled defendant's objection to the comment.
Defendant alleges that the prosecutor mischaracterized defendant's statement
to Gray as a confession and thereby improperly limited the jury's
consideration that defendant's knowledge of the murders could have come from
another source.
We agree with defendant that the prosecutor's description of defendant's
statement to Betty Gray as a confession is inaccurate. A confession is a
direct acknowledgment of guilt after the perpetration of an offense, and does
not embrace mere statements or declarations of independent fact from which
guilt may be inferred. People v. Stanton, 16 Ill. 2d 459, 466 (1959).
Defendant's comments to Gray did not directly acknowledge his commission of
the offenses; therefore, the prosecutor's characterization of the comment was
incorrect. However, prosecutors are afforded wide latitude in closing
argument and improper remarks will not merit reversal unless they result in
substantial prejudice to the accused. People v. Thompkins, 121 Ill. 2d 401,
445 (1988). Here, defendant's statement to Gray, coupled with other evidence
adduced at trial, allowed the reasonable inference that defendant possessed
guilty knowledge of the offenses. This was but one phrase in the
prosecution's lengthy closing argument. The jurors had heard Gray's testimony
and could weigh the implications of defendant's statement to Gray themselves.
Moreover, at the time of the prosecutor's remark, defendant's written
statement confessing to the crimes already had been read to the jury.
Therefore, we do not believe the prosecutor's mischaracterization of
defendant's comment to Gray was so substantial that it prejudiced defendant
and deprived him of a fair trial.
In his final group of arguments pertaining to the guilt-innocence phase
of trial, defendant complains of a number of comments made by the prosecution
in summation and rebuttal. However, we need not consider the merits of
defendant's arguments regarding these prosecutorial statements. Although the
complained of closing remarks were raised in counsel's post-trial motion,
defendant did not object to any of the challenged remarks at trial, and we
therefore consider these issues waived. Mahaffey, 166 Ill. 2d 1, 27 (1995).
We also believe that the complained-of remarks do not constitute plain
error. As noted, the prosecution presented substantial evidence of
defendant's guilt. Moreover, our review of the remarks indicates that none of
the comments was of the magnitude that it would have deprived defendant of a
fair trial. People v. Carlson, 79 Ill. 2d 564, 576-77 (1980).
In his closing argument the prosecutor commented that the jurors should
not let defendant's decision to represent himself enter into their verdict.
He stated that defendant had a right to represent himself and that the jurors
should not feel sorry for defendant if "things didn't go exactly perfectly
for him." The prosecutor continued:
"At any rate, he had each and every right that he had as a
defendant. He did not lose any rights whatsoever as a defendant
when he chose to represent himself. He retained those rights. In
fact he gained rights. He had normal defendant's rights plus all
the rights a lawyer had and was able to [sic] personally to
question witnesses themselves and subpoena each and every witness
he may want to and put anybody at all on the witness stand and
elicit testimony about anything from anyone as long of course as he
followed the Rules of Evidence that is relevant to this case."
We do not agree with defendant's unsupported allegation that the jurors
would have understood the preceding comments as diminishing the burden of
proof or as suggesting that defendant bore the burden of proving his
innocence. The prosecutor was urging the jurors not to allow defendant's pro
se status to influence their verdict. The prosecutor was explaining that in
contrast to defendants who have counsel represent them, defendant had been
able to personally call and question witnesses. As we have stated, the
evidence was not closely balanced and we do not believe that the prosecutor's
brief statement regarding defendant's rights was of such a magnitude that it
prejudiced the jury's deliberation and deprived defendant of a fair trial.
Defendant further claims that the prosecutor erred when he told the
jurors that if they found defendant guilty, they would have an opportunity to
learn more about the defendant at the next stage of trial. The comment came
at the end of the State's summation. The prosecutor stated that if the jury
found the defendant guilty, the trial would proceed to the next stage where
the jury would have opportunity to learn more "from both sides." He then
stated that if the jury did not find defendant guilty he would "walk out the
door."
Construing the comment in context (People v. Cisewski, 118 Ill. 2d 163,
175-76 (1987)), we find no error. Earlier in the trial, during voir dire, the
judge had informed the jury that if there was a finding of guilty in this
case, a separate hearing would be held to determine if the death penalty
should be imposed. The comments challenged here were the prosecutor's final
plea to the jurors that they not allow the defendant to "go free." The
statement that the jurors would learn more if a guilty verdict was returned
simply reminded the jurors that if they returned a guilty verdict, a penalty
would be imposed, but a separate proceeding would be held to determine what
that penalty would be.
Finally, defendant challenges the prosecutor's statement during his
rebuttal statement that "it is not too often the People of the State of
Illinois have a case with this much evidence." The prosecutor also stated
that the State's burden was "just proof beyond a reasonable doubt." The
comment was made after defendant's closing argument where he urged the jury
to find that the evidence was insufficient to convict him. The prosecutor's
comment was a response to defendant's own comments, and therefore was not
error. People v. Mahaffey, 128 Ill. 2d 388, 425 (1989).
II. FAILURE TO APPOINT MITIGATION SPECIALIST
Defendant next alleges that the trial court committed reversible error
when it denied defendant's motion for appointment of a mitigation specialist.
Eighteen months before trial, defendant presented a motion to the court
titled "Petition For Funds To Be Provided For An Investigator *** Which Would
Include, But Not Be Limited To Interviews With Potential Witnesses and
Character Witnesses For The Defense." The motion sought court appointment of
a specific individual to assist defendant regarding "potential witnesses and
character witnesses for the defense." The judge initially denied the motion.
The basis for denial was that the public defender was equipped to perform
such interviews and it was defendant's choice to decline such assistance.
After the initial denial, the prosecutor suggested to the judge that
defendant was seeking more than routine investigative services. The judge
asked defendant to elaborate, and he responded that he was seeking "character
witnesses." The judge asked defendant if he wanted witnesses for the purpose
of a sentencing hearing. Defendant answered "in the event." The judge then
told defendant that she would defer a ruling on the motion.
Four months later, before any ruling was made on the motion, the judge
took a leave of absence and defendant's case was transferred to the trial
judge. After 10 more months of pretrial proceedings, the trial judge
attempted to set a trial date and gave defendant a deadline to resolve the
issue of any outstanding motions. Before the hearing was held to dispose of
the motions, the judge and defendant again discussed contacting witnesses.
Defendant continued to object to the services of the public defender in any
capacity, including to help him locate and subpoena witnesses. The judge
nonetheless explained to defendant that although defendant was representing
himself, he could use standby counsel to locate and subpoena witnesses.
Defendant did not mention his motion for funds to hire an investigator at
that time.
Soon thereafter, a hearing was held to dispose of all of defendant's
outstanding motions. Defendant did not reintroduce the request for
appointment of an investigator or seek a ruling on the previously filed
motion. When the trial judge declared that he had disposed of all of the
motions, defendant objected. Defendant then mentioned a motion to dismiss,
but still did not call the judge's attention to his request for investigative
assistance. Between the date of the hearing during which all motions were to
be disposed of and the trial date, defendant was allowed to file additional
motions. None of the motions, however, revisited the issue of appointment of
an investigator.
On these facts it is not clear that defendant ever requested a
mitigation specialist. Defendant admits that his request for an investigator
was "broadly written" and that he never defined the purpose of his request
other than to facilitate investigation of "character witnesses." Defendant
argues that by naming a particular individual who is a mitigation expert in
his written request, defendant properly defined the particular expertise he
sought. The written motion seeks "to employ the services of David Randall and
Associates, Psychosocial and Forensic Consultation [address]." The request
does not discuss the functions the expert would perform. The judge queried
defendant when he tendered the request but defendant did not expound his
reasons for the request.
Because defendant failed to explain to the judge why he sought funds to
hire the expert, we believe defendant did not sufficiently advise the court
that he was requesting assistance to obtain mitigation evidence.
Further, defendant has waived his claim. A movant has the responsibility
to obtain a ruling from the court on his motion to avoid waiver on appeal.
People v. Schmitt, 131 Ill. 2d 128, 137 (1989). Although defendant appeared
before more than one judge, as his own counsel he was burdened with the
responsibility to track the motions and to monitor their disposition, which
he did not do. The judge to whom defendant initially tendered his request
made it clear on the record that she was reserving a ruling on the motion.
Subsequently, when the next judge asked defendant if he had other outstanding
motions, defendant failed to preserve this issue when he did not call to the
attention of the court his outstanding request for appointment of an
investigator.
Plain error will also not defeat the waiver. The State presented
extensive evidence of a gruesome crime in aggravation. No witnesses testified
in mitigation. The State's evidence included expert testimony regarding the
extreme pain and suffering of the child victims. For example, the expert
witness commented that the pain Leola would have experienced from her vaginal
injuries would be "one of the worst kinds of pain you could experience." The
State also introduced defendant's lengthy criminal record, including his
previous convictions for sexual assault and attempted murder.
We also believe that defendant's lack of funds for a mitigation expert
did not result in an unfair sentencing hearing. The mitigation evidence
defendant suggests an expert would have presented is purely speculative.
Defendant contends that had an expert been appointed, there were several
avenues of "potentially fruitful" mitigation which could have been pursued.
However, the record contains no evidence of what mitigating evidence
defendant would have introduced or might have argued. While defendant argues
that his lengthy incarceration generally made contacting witnesses difficult,
he does not explain his failure to present the testimony of his family
members, whom he claimed to have spoken with repeatedly about obtaining a
private attorney. Moreover, defendant's allegation that a mitigation witness
could have investigated his psychiatric background is questionable.
Defendant's decision to reject assistance of the public defender was based on
his objection to any portrayal of him as a person with psychiatric problems.
We find inconsistent defendant's argument that he would have been willing to
have anyone present such evidence if it were available. Accordingly,
defendant has not demonstrated that even if a mitigation expert had been
appointed, there was a reasonable probability that defendant's sentence would
have been different. See People v. Hall, 157 Ill. 2d 324, 340 (1993).
III. SENTENCING ISSUES
A. Pathologist's Testimony
Defendant claims that he was denied a fair sentencing hearing because
the court allowed the State to present cumulative and prejudicial testimony
of an expert, Dr. Donoghue, in aggravation. Defendant acknowledges that Dr.
Donoghue's testimony was relevant, but alleges that it was duplicative of
testimony at the guilt phase and was therefore inflammatory and prejudicial.
However, we do not reach the merits of this issue. Although defendant raised
the issue in his post-trial motion, he did not object to Dr. Donoghue's
testimony at sentencing and thereby has waived the issue for review. People
v. Enoch, 122 Ill. 2d 176, 186 (1988).
We also reject defendant's argument that the plain error doctrine will
overcome the procedural default. 134 Ill. 2d R. 615(a). As we have already
noted, the evidence against defendant in aggravation was overwhelming and
uncontroverted. Therefore, we need only examine if the alleged error was of
such a magnitude that it deprived defendant of a fair trial. People v. Bean,
137 Ill. 2d 65, 80 (1990).
At the guilt phase of trial, Dr. Donoghue related the number and
characteristics of the injuries each victim suffered. At sentencing, Donoghue
repeated a description of the injuries of each of the victims. However, Dr.
Donoghue's testimony also concerned the degree of pain and suffering of each
victim and the time of death relative to the rape and injury of each victim.
Our review of the record indicates that the repetitive testimony was
contextually appropriate to frame Dr. Donoghue's testimony regarding the
victims' pain and time of death.
The nature of the contested evidence here contrasts with that in People
v. Williams, 161 Ill. 2d 1 (1994), relied on by defendant. In Williams, the
defendant was deprived of a fair sentencing hearing where the prosecutor was
allowed to use an oversized demonstrative aid to unnecessarily memorialize
clearly understandable testimony of defendant's criminal history. Williams,
161 Ill. 2d at 68. The contested evidence in Williams was wholly cumulative,
where here the pathologist's testimony during the penalty phase of the
proceeding put before the jury evidence of the nature of the crime and the
pain suffered by the victims. Accordingly, the trial court did not err in
admitting Dr. Donoghue's testimony which was relevant to the nature of the
crimes and the harm inflicted on the victims, issues relevant to the
sentencing proceeding. People v. Hobley, 159 Ill. 2d 272, 317 (1994).
B. Participation of Standby Counsel
In the aggravation phase of sentencing, Iola Warren testified for the
prosecution that in 1979 defendant raped her and strangled and stabbed her
mother. Iola's mother, Geraldine Warren, also testified. Before defendant
cross-examined Geraldine Warren, he was granted a recess to consult with
standby counsel. When the hearing resumed, defendant asked the court to allow
standby counsel to examine the witness because defendant did not "want to add
to her anxiety, frustration of [sic] me." The prosecutor offered the opinion
that he did not think defendant was entitled to have standby counsel examine
the witness. The trial judge reminded defendant that he had made a choice to
defend himself and therefore would defend himself "all of the way through."
The trial judge then denied the request on the basis that standby was not the
attorney of record, but was only present in a standby capacity. Defendant
proceeded to cross-examine the witness without disruption or outburst.
Defendant contends that the trial judge abused his discretion when he
denied defendant's request to allow standby counsel to cross examine
Geraldine Warren. Defendant alleges that his constitutional right to counsel
(U.S. Const., amend. VI) was denied when the court first appointed standby
counsel and then denied defendant's request to allow standby a more active
role.
The right of self-representation does not carry with it a corresponding
right to legal assistance; one choosing to represent himself must be prepared
to do just that. People v. Gibson, 136 Ill. 2d 362, 383 (1990). However, the
trial court has broad discretion to appoint counsel for advisory or other
limited purposes (People v. Allen, 37 Ill. 2d 167, 172 (1967)) and to
determine the nature and extent of standby counsel's involvement (see People
v. Smith, 249 Ill. App. 3d 460, 470-71 (1993)). Even where a trial court
appoints standby counsel, the constitutional right to self-representation
does not require a court to permit a "hybrid" representation in which a
defendant alternates between representing himself and having counsel
represent him. Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992), citing
McKaskle v. Wiggins, 465 U.S. 168, 183, 79 L. Ed. 2d 122, 136, 104 S. Ct.
944, 953 (1984); People v. Taggart, 233 Ill. App. 3d 530, 557 (1992).
We cannot say here that the trial court's refusal to allow standby
counsel to cross-examine a witness was an abuse of discretion. In the
pretrial phase, defendant adamantly resisted the court's repeated offers of
appointed counsel. Defendant strongly resisted the appointment of standby
counsel and ultimately accepted standby counsel only after the trial judge
explained that standby counsel's role would be strictly limited. Moreover,
the trial judge repeatedly informed defendant that the scope of standby
counsel's participation would be very narrow and that if defendant chose
self-representation, he would be bound by that decision throughout the trial.
Defendant represented himself throughout the guilt phase and the eligibility
hearing without seeking the active participation of standby counsel. The
trial judge reasonably exercised its discretion in limiting standby counsel's
participation to an advisory role.
People v. Lindsey, 17 Ill. App. 3d 137 (1974), on which defendant
relies, is distinguishable. In Lindsey, the trial court allowed defendant to
act as his own counsel with appointed counsel in a "co-counsel" role. The
court stated that defendant would be proceeding pro se with counsel to
"assist him." Counsel participated and objected during the examination of the
State's first two witnesses. Later, the trial court refused to allow counsel
to question several witnesses or to make objections. The appellate court held
that it was an abuse of discretion to initially allow counsel to actively
participate and then later restrict the availability of counsel to assist the
defendant. Lindsey, 17 Ill. App. 3d at 143-44.
In this case, the trial judge and the other pretrial judges consistently
warned defendant that standby counsel's role would be very limited. Defendant
was never led to believe that standby would be allowed to actively
participate at trial. Unlike the defendant in Lindsey, here defendant cannot
say that he reasonably held an expectation that standby counsel would be
available to make objections or examine witnesses.
We do not agree with defendant that because his request was "reasonable
under the circumstances" it should have been granted. Defendant fails to
demonstrate any change in circumstances that necessitated a change in the
level of standby counsel's participation. The record does not reflect that
examination of Geraldine Warren posed any more difficulty than cross-
examination of other witnesses, including Ruby Bea, the mother of the
victims, Iola Warren, a victim of defendant's prior crime, or Reynard McRay,
an inmate allegedly raped by defendant.
Even if we accepted defendant's contention that the court's refusal to
acquiesce in defendant's desire for a hybrid representation violated his
right to counsel, we believe that it was harmless error beyond a reasonable
doubt. Defendant's characterization of Geraldine Warren's testimony as a
"linchpin" of the prosecution's case in aggravation is unfounded. In the
event that Geraldine Warren's testimony had been impeached, substantial
evidence of the rape of Iola and the stabbing of Geraldine would nonetheless
be before the jury. Iola gave a detailed description of the crimes, and the
State later offered a certified copy of defendant's conviction for the rape
of Iola Warren and the attempted murder of Geraldine Warren.
We note that after the court denied defendant's request to have counsel
question the witness, defendant cross-examined Geraldine Warren. The record
does not reflect any overt antagonism that infected defendant's ability to
elicit answers to his questions. Defendant explored inconsistencies between
Geraldine's testimony and a hospital report. Defendant's contention that the
witness was upset and that a different result "probably" would have obtained
is purely speculative. On these facts, we cannot say that had standby counsel
cross-examined Geraldine Warren the sentencing jury would have reached a
different result.
C. Jury Instruction
At sentencing, the jury was properly instructed that defendant could be
sentenced only to natural life imprisonment without parole if the jury did
not impose the death sentence. Ill. Rev. Stat. 1983, ch. 38, par. 1005--8--
1(a)(1)(c); Illinois Pattern Jury Instructions, Criminal, No. 7C.05 (3d ed.
1992) (hereinafter IPI Criminal 3d). After the court gave IPI Criminal 3d No.
7C.05, the court then instructed the jury on issues in aggravation and
mitigation. The final paragraph of the instruction told the jurors that if
they did not find mitigating factors sufficient to preclude imposition of the
death penalty, then they should sign the verdict requiring the court to
"impose a sentence other than death." IPI Criminal 3d No. 7C.06.
Defendant contends that the language of IPI Criminal 3d No. 7C.06,
coupled with that of IPI Criminal 3d No. 7C.05, created confusion and allowed
the jury to believe that defendant was eligible to receive a prison term of
years and that he could be paroled. Defendant argues that he is entitled to
a new sentencing hearing because the contradictory instructions deprived him
of a fair hearing.
Defendant has waived this issue because he neither objected to the
challenged instruction at trial nor offered an alternative instruction. It is
well established that a defendant generally cannot challenge an instruction
on appeal unless he made a contemporaneous objection at trial and, where
appropriate, tendered an alternative instruction. People v. Rissley, 165 Ill.
2d 364, 406 (1995).
Under an exception to the waiver rule, substantial defects in
instructions are not waived by failure to make timely objections thereto, if
the interest of justice so requires. 134 Ill. 2d R. 451(c). The plain error
rule applies when the evidence is closely balanced or when the error is of
such a magnitude that it deprives the defendant of a fair trial. Carlson, 79
Ill. 2d at 576-77. As previously noted, the evidence against defendant in
aggravation was substantial and defendant offered no evidence in mitigation.
We need only consider if the alleged error in instructions deprived defendant
of a fair trial.
In People v. Gacho, 122 Ill. 2d 221 (1988), this court held that where
a defendant has been found guilty of multiple murder, it is an incomplete
statement of the law to instruct the jurors that if they find sufficient
mitigating factors to preclude imposition of the death penalty, "the court
shall sentence the defendant to imprisonment." Gacho, 122 Ill. 2d at 262;
Illinois Pattern Jury Instructions, Criminal, No. 7A.15 (2d ed. 1981)
(hereinafter IPI Criminal 2d). This court found that such an incomplete
statement of sentencing alternatives could lead the jury to erroneously
believe the only way of keeping the defendant from society would be to impose
the death penalty. Gacho, 122 Ill. 2d at 262.
Following this court's opinion in Gacho, trial courts must specifically
instruct the jurors in cases involving a defendant convicted of multiple
murders that if "they find mitigating factors sufficient to preclude
imposition of the death penalty, defendant will be sentenced to natural life
imprisonment, and no person serving a term of natural life imprisonment can
be paroled or released except through executive clemency." Gacho, 122 Ill. 2d
at 262.
As defendant points out, IPI Criminal 2d No. 7C.06 was formulated before
this court's decision in Gacho. Illinois Pattern Jury Instructions, Criminal,
No. 7C.06 (2d ed. Supp. 1987). When IPI Criminal 2d No. 7C.06 was later
revised, it did not include language applicable to sentencing a defendant
convicted of multiple murder. Defendant argues that the unrevised language of
IPI Criminal 3d No. 7C.06 conflicts with IPI Criminal 3d No. 7C.05 and
cancels the effectiveness of the Gacho instruction which was given in this
case.
We disagree. Standing alone IPI Criminal 3d No. 7C.06 could lead the
jury to incorrectly believe that defendant could be sentenced to a term of
imprisonment which could lead to parole. However, when the complained-of
instruction is reviewed in context (People v. Terry, 99 Ill. 2d 508, 516
(1984)) with IPI Criminal 3d No. 7C.05, it is clear that only two
alternatives existed for defendant's sentence: (1) the death penalty or (2)
natural life imprisonment. The complained-of instruction, IPI Criminal 3d No.
7C.06, told the jurors that based on their weighing of aggravating and
mitigation factors, the court would either impose the death sentence or a
sentence "other than death." That instruction, coupled with IPI Criminal 3d
No. 7C.05, also given in this case, correctly instructs the jury that the
"other than death" sentence will be natural life imprisonment without the
possibility of parole or release except through executive clemency. Unlike
Gacho, where the jury was given incomplete information regarding the range of
sentencing alternatives the defendant might receive, the jury here was given
the precise sentencing alternatives statutorily available.
Further, the instruction regarding the verdict forms, given shortly
after the complained-of instruction, and the verdict form itself, accurately
stated that if the jury found sufficient mitigating evidence "the court shall
impose the sentence of natural life imprisonment."
Because IPI Criminal 3d No. 7C.05 and the verdict forms explain the
sentence other than death referred to in IPI Criminal 3d No. 7C.06, we
believe the jurors were correctly instructed regarding the sentencing
alternatives. Because we find the jury instructions were not improper, we
need not analyze the issue under the waiver exception.
Defendant further contends that a prosecutorial remark in closing and a
jury instruction given at the eligibility phase exacerbated the alleged
confusion created by the instructions. Defendant has waived consideration of
these issues for failure to object at trial. Rissley, 165 Ill. 2d at 406.
D. Prosecutorial Comments at Sentencing
Defendant next argues that the prosecutor's comment in his closing
argument at the aggravation and mitigation phase of sentencing was inaccurate
and improper.
In his closing remarks to the jury in the aggravation and mitigation
phase of the sentencing hearing, the prosecutor discussed defendant's
criminal history. At the conclusion of his recitation of defendant's previous
convictions, the prosecutor urged the jury to sentence defendant to death.
The prosecutor told the jury that the time to impose the death penalty was
"long, long overdue" for defendant. Defendant did not object to the comment
during the sentencing hearing, and therefore he has waived the point. People
v. Fields, 135 Ill. 2d 18, 55 (1990).
Plain error will not defeat the procedural bar because, as noted
previously, the evidence in aggravation was uncontroverted and not closely
balanced. Moreover, we do not believe error occurred. We reject defendant's
contention that the challenged remark served only to inflame the jury.
Prosecutor's are afforded wide latitude in closing argument (People v.
Thompkins, 121 Ill. 2d 401, 445 (1988)), and we believe the State's argument
that jury could have understood the remark to refer to the nine-year lapse
between the crime and the sentencing proceeding.
IV. CUMULATIVE ERROR
Defendant next contends that the cumulative effect of the alleged errors
at sentencing denied him a fair hearing and warrant reversal of his death
sentence. Having found no errors, we reject defendant's contention.
V. CONSTITUTIONALITY OF DEATH PENALTY CLAIMS
Defendant's final allegations of error challenge the constitutionality
of certain provisions of the Illinois death penalty statute, section 9--1 of
the Criminal Code of 1961.
Defendant first claims that his death sentence must be vacated and
remanded for a new hearing because it was based in part on an
unconstitutional provision of our Criminal Code, section 9--1(b)(7) (Ill.
Rev. Stat. 1983, ch. 38, par. 9--1(b)(7)). Defendant contends that the terms
used in the statute to define the conduct that will sustain a finding of
eligibility, "exceptionally brutal or heinous behavior indicative of wanton
cruelty" (Ill. Rev. Stat. 1983, ch. 38, par. 9--1(b)(7)), are facially vague
and therefore unconstitutional.
Relying on the Supreme Court's decisions in Maynard v. Cartwright, 486
U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988), and Shell v.
Mississippi, 498 U.S. 1, 112 L. Ed. 2d 1, 111 S. Ct. 313 (1990), defendant
alleges section 9--1(b)(7) fails to provide principled guidance for the
sentencer's discretion in imposing the death penalty. However, this court has
previously considered the constitutionality of section 9--1(b)(7) in light of
Maynard and has held that section 9--1(b)(7) does not suffer from the same
constitutional infirmity as the statue in Maynard. People v. Odle, 128 Ill.
2d 111, 138-41 (1988).
We also find defendant's reliance on Shell v. Mississippi, 498 U.S. 1,
112 L. Ed. 2d 1, 111 S. Ct. 313 (1990), unpersuasive. In Shell, the Supreme
Court found the trial court's limiting instruction, defining an aggravating
factor identical to that in Maynard, to be constitutionally insufficient.
Shell, 498 U.S. at 4, 112 L. Ed. 2d at 5, 111 S. Ct. at 314. This court's
decision in Odle, holding that section 9--1(b)(7) was not unconstitutionally
vague, rested on the distinction between the language of the aggravating
factor in the Oklahoma statute at issue in Maynard and the more specific
description which qualifies an accused for the death penalty in Illinois.
Odle, 128 Ill. 2d at 140. The language of the aggravating factor in the
Mississippi statute at issue in Shell is identical to the statutory language
challenged in Maynard, and therefore section 9--1(b)(7) is distinguishable on
the same basis.
This court has repeatedly affirmed its holding in Odle that the
statutory language of section 9--1(b)(7) sufficiently channels the discretion
of the sentencer. People v. Banks, 161 Ill. 2d 119, 146-47 (1994); People v.
Lucas, 132 Ill. 2d 399, 443-46 (1989); People v. Kidd, 129 Ill. 2d 432, 454-
56 (1989). Defendant offers no persuasive ground to support his request that
we reconsider the holding in Odle, and we decline to do so.
In a related argument, defendant claims the jury instructions in the
eligibility phase of the sentencing hearing did not adequately define the
language of section 9--1(b)(7). At sentencing, over defendant's objections
the judge instructed the jury on the definition of the words "brutal" and
"heinous" as contained in section 9--1(b)(7). IPI Criminal 3d Nos. 7B.07A,
7B.07B. Defendant objected to the instruction because he did not believe the
jury needed "to be educated as to what is [sic] an aggravating factor."
Defendant's argument on appeal, that the instructions were too vague to offer
principled guidance to the jury, is inconsistent with his objection at trial.
Defendant also failed to submit an alternative instruction. Therefore, we
find defendant has waived his argument. Rissley, 165 Ill. 2d at 406.
We also believe that plain error analysis will not defeat the waiver. In
compliance with this court's holding in People v. Lucas, 132 Ill. 2d 399,
448-49 (1989), the judge in this case instructed the jury on the definitions
of the statutory terms at the sentencing hearing. Brutal was defined as
"grossly ruthless, devoid of mercy or compassion, cruel, and cold-blooded."
IPI Criminal 3d No. 7B.07A. Heinous was defined as "hatefully or shockingly
evil, grossly bad, enormously, and flagrantly criminal." IPI Criminal 3d No.
7B.07B. The instructions gave a sufficient explanation and an adequate
limiting construction and we believe no error occurred.
Defendant next argues that the Illinois death penalty statute violates
the eighth and fourteenth amendments because it places a burden of proof on
the defendant and precludes meaningful consideration of mitigation. We have
previously rejected this claim (Rissley, 165 Ill. 2d at 408; People v. Page,
155 Ill. 2d 232, 283 (1993); People v. Mitchell, 152 Ill. 2d 274, 345-46
(1992)) and do so again here. We have also held that the death sentencing
procedure is not unconstitutional where the prosecution is allowed to have
both initial and rebuttal arguments at the sentencing hearing. Page, 155 Ill.
2d at 282-83.
Finally, defendant claims that various aspects of the Illinois death
penalty statute, in combination, invite the risk of arbitrary or capricious
imposition of death sentences. Defendant admits that this court has
previously examined and rejected the constitutional challenges defendant
raises. See People v. Whitehead, 116 Ill. 2d 425 (1987); People v. Albanese,
102 Ill. 2d 54 (1984); see also People v. Tenner, 157 Ill. 2d 341, 390
(1993); Page, 155 Ill. 2d at 284-85. Defendant suggests the previously
rejected grounds for finding the statute unconstitutional, when considered
cumulatively, render the statute unconstitutional. However, this court has
held that if the individual aspects of the statute are constitutional, then
it follows that the whole is constitutional. People v. Phillips, 127 Ill. 2d
499, 542-43 (1989).
CONCLUSION
For the reasons stated, the judgement of the circuit court of Cook
County is affirmed. The clerk of this court is directed to enter an order
setting Tuesday, November 12, 1996, 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
Stateville Correctional Center, and to the warden of the institution where
defendant is confined.
Affirmed.