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. 79162--Agenda 2--January 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. RAYMOND
BURGESS, Appellant.
Opinion filed April 24, 1997.
JUSTICE MILLER delivered the opinion of the court:
The defendant, Raymond Burgess, was convicted of first
degree murder and aggravated battery of a child following a jury
trial in the circuit court of Henry County. At a separate
sentencing hearing the same jury found the defendant eligible for
the death penalty and further determined that there were no
mitigating circumstances sufficient to preclude imposition of that
sentence. The defendant was accordingly sentenced to death for his
conviction for first degree murder, and he received a sentence of
30 years' imprisonment for the aggravated battery conviction. The
defendant's execution has been stayed pending direct review of the
case by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d
Rs. 603, 609(a).
The evidence presented at trial may be stated briefly.
The defendant brought the victim, 3½-year-old Matthew Mote, to
Illini Hospital, in Silvis, around 5 p.m. on September 24, 1994.
Emergency room personnel attempted to resuscitate the child, but
their efforts were unsuccessful. The attending physician, Dr. Scott
Ludwig, and the emergency room nurses, Jane Keag and Kelly Miller,
noticed a substantial number of bruises on the child's body, and
law enforcement authorities were notified because of the nature of
the child's injuries.
The defendant agreed to talk to the officers. In his
initial statements, the defendant explained that he and the child
were alone beginning around noon that day, when the child's mother,
Deena Kent, left the residence. According to the defendant, Matthew
soiled his pants several times. On what turned out to be the last
occasion, the defendant cleaned up the victim, bathed him, and
dressed him in clean clothes. The defendant said that he then left
the victim in his bedroom, where he was playing, while the
defendant went to his own bedroom to watch television. Sometime
later, the defendant went to the other bedroom to check on the
child. The defendant said that he found the boy lying under the box
spring of the bed, which had apparently collapsed on him. The
defendant told the officers that he then tried to resuscitate the
child but was unsuccessful. The defendant carried Matthew to the
car and picked up the child's mother at another location. The
defendant then drove to the hospital to seek treatment for the
child.
The defendant initially denied hitting or striking the
victim. In response to further questioning, however, the defendant
admitted to officers that he had punched the victim several times.
In a written statement, the defendant explained that as he was
cleaning up Matthew, the child threw feces at him, and the
defendant told officers that he then punched the child several
times in the stomach. The defendant continued to maintain, however,
that he left the child in his bedroom to play after the bath, and
that sometime later he found the child lying under the box spring.
The defendant told the officers that injuries to the victim's
rectal area could have been caused by a rubber spatula the
defendant used to clean the child. The defendant denied sexually
penetrating Matthew.
Police officers searched the defendant's residence, in
Green Rock. In the child's bedroom they found the box spring
partially off the bed frame, but they noticed toy cars sitting on
the railing of the frame, dust on the cars and bed frame, and
cobwebs around the frame and the spring. All this suggested to the
officers that the box spring had been in that condition for some
time. In the bathroom, officers found a rubber spatula, which was
clean. The State also introduced testimony from a number of persons
who witnessed prior acts of abuse by the defendant toward the
victim.
An autopsy was conducted on September 25, 1994, by Dr.
Mary Jumbelic at Proctor Hospital, in Peoria. Dr. Jumbelic found
evidence of 120 separate injuries to the victim's body. The
injuries were primarily bruises, and they were located on the
child's face, head, neck, chest, abdomen, genital area, back,
buttocks, and arms and legs. One particularly large bruise was
found on the child's abdomen. An internal examination revealed that
the child had sustained a tear to his liver and to his mesentery.
Dr. Jumbelic concluded that the victim died as a result of
extensive internal bleeding, in both the cranial and abdominal
regions, caused by blunt trauma. Dr. Jumbelic believed that the
victim could not have survived more than an hour after incurring
the injuries, and that the injuries were not the result of
accident.
The autopsy report and photographic evidence in the case
were also examined by Dr. Lori Frasier, who testified as an expert
in the area of child abuse. Dr. Frasier, a pediatrician, was an
assistant professor and director of the child protection and
advocacy program at the University of Missouri, Columbia. From her
analysis, Dr. Frasier concluded that the victim died as a result of
child abuse.
The defense presented testimony from a number of
witnesses who described acts of abuse by the child's mother, Deena
Kent, toward her son. The defendant also testified at trial. He
recounted the events occurring on the day of Matthew's death, and
he described his efforts to clean the child after Matthew had
soiled his underwear. The defendant said that on the day of the
child's death, Matthew had fallen from a stool, had fallen down
stairs, had fallen out of a tree, had gotten into a fight with two
other boys, and had fallen in the bathtub. The defendant admitted
that he had punched the child several times, but he denied causing
the victim's death.
In rebuttal, one of the investigating officers testified
that the defendant had not said, during questioning, that Matthew
had fallen down stairs or from a tree or had been in a fight with
other children.
At the close of evidence, the jury found the defendant
guilty of two counts of first degree murder and one count of
aggravated battery of a child. The matter then proceeded to a
capital sentencing hearing. At the first stage of the hearing, the
State presented additional evidence showing that the victim's anus
was dilated when he was brought to the emergency room and,
moreover, that human seminal fluid was present in the anal cavity.
The State sought to establish the defendant's eligibility for the
death penalty on the basis of two independent statutory aggravating
circumstances: commission of the murder in the course of another
felony, in this case, aggravated criminal sexual assault, and the
murder of a child in a brutal and heinous manner (720 ILCS 5/9--
1(b)(6), (b)(7) (West 1994)). At the conclusion of the first stage
of the hearing, the jury found the existence of both statutory
aggravating circumstances.
At the second stage of the capital sentencing hearing,
the State presented testimony of previous acts of violence
committed by the defendant. A woman who had formerly lived with the
defendant described two incidents in which the defendant had
threatened her with a handgun. One of the woman's two daughters
corroborated her mother's account and also testified that the
defendant had often spanked her sister. In addition, the parties
stipulated that the defendant was convicted of first degree forgery
in Georgia in 1987 and received a sentence of three years'
probation for that offense.
In mitigation, the defendant presented favorable
testimony from a number of persons, including former neighbors of
the defendant, a former employer, and the defendant's father. These
persons described the defendant as helpful and generous and said
that the defendant was kind to children.
At the conclusion of the sentencing hearing, the jury
found that there were no mitigating circumstances sufficient to
preclude imposition of the death penalty. Accordingly, the trial
judge sentenced the defendant to death. The judge later sentenced
the defendant to an extended term of 30 years' imprisonment on his
conviction for aggravated battery of a child.
I
Following the submission of the defendant's initial
brief, this court granted the defendant's motion to stay the normal
briefing schedule and to remand the cause to the circuit court of
Henry County for a supplementary hearing. According to the order
granting the motion, this was done for the "limited purpose of
determining whether defendant ingested psychotropic medication at
or near the time of his trial and sentencing." Our order further
stated, "The circuit court shall conduct such proceedings as it
deems necessary and report its findings to this court within 60
days of this order." The trial judge conducted the hearing in March
1996 and later submitted written findings to us. Before this court,
the parties have submitted briefs on the issues raised by the
remand proceeding, as well as on issues pertaining to the
defendant's trial and sentencing hearing.
The evidence presented at the hearing revealed that Dr.
Robert Edwalds, a psychiatrist, prescribed three different drugs
for the defendant--doxepin, trazodone, and lorazepam--all of which
are classified as psychotropic agents. Dr. Edwalds prescribed these
drugs to assist the defendant in sleeping. According to records
maintained by the Henry County jail, the defendant received a
single dose of doxepin at bedtime on a daily basis from October 21,
1994, to December 10, 1994. The defendant received a single dose of
trazodone at bedtime on a daily basis from November 4, 1994, until
March 28, 1995. The defendant received a single dose of lorazepam
at bedtime on a daily basis from January 13, 1995, until February
22, 1995, and again from March 8, 1995, until March 27, 1995. Jury
selection began on March 6, 1995, and the parties gave their
opening statements on March 10, 1995. The defendant's capital
sentencing hearing concluded on March 21, 1995.
Relying on People v. Brandon, 162 Ill. 2d 450 (1994), and
its progeny, the defendant argues that he is now entitled to a new
trial. The defendant notes that he was receiving psychotropic drugs
at the time of his trial and sentencing hearing in this case yet
did not then receive a hearing into his fitness, which Brandon and
subsequent cases have held was required by a statute in force at
the time of the earlier proceedings, section 104--21(a) of the Code
of Criminal Procedure of 1963 (725 ILCS 5/104--21(a) (West 1994)).
The State contends that evidence presented at the hearing on remand
clearly demonstrates that the psychotropic drugs ingested by the
defendant had no effect on his mental condition during the earlier
proceedings.
Dr. Edwalds testified at the hearing on remand that he
prescribed three different drugs for the defendant because of the
defendant's complaints that the first two were not effective. Dr.
Edwalds believed that the drugs would not have had any effect on
the defendant's mental condition the following day, given their
dosages and the time at night at which they were taken. It appears
from the record that Dr. Edwalds had not intended for the different
drugs to be taken simultaneously, but that the jailers
inadvertently gave the defendant both doxepin and trazodone for a
period, and later both trazodone and lorazepam. The defendant was
receiving both trazodone and lorazepam at the time of his trial and
sentencing hearing. Nonetheless, Dr. Edwalds did not believe that
the two drugs, even when taken in combination, would have produced
any psychotropic effect on the defendant the following day. Dr.
Edwalds noted that the two medications are frequently taken
together.
Robert Streight, the jail administrator, testified that
he saw the defendant numerous times each day. Streight said that
the defendant always seemed alert and normal; Streight did not
observe any change in the defendant's demeanor during his period of
incarceration. According to Streight, jailers had secretly observed
that the defendant would begin shaking when he heard them approach
and would cease to shake after they had walked by.
Dr. Linda Gruenberg, a psychiatrist, testified in the
defendant's behalf at the hearing on remand. Dr. Gruenberg did not
believe that doxepin could have had any effect on the defendant
during trial or sentencing, for the defendant ceased taking it long
before trial began. Dr. Gruenberg also did not believe that the
defendant would have been affected by lorazepam, which the
defendant was taking during the trial and sentencing hearing. Dr.
Gruenberg explained that the defendant's bedtime dose of lorazepam,
an antianxiety drug, would not have had any significant effect on
his mental state the next day. Dr. Gruenberg believed, however,
that the defendant could have been affected by the doses he was
receiving of trazodone. Dr. Gruenberg said that the drug, an
antidepressant that is also prescribed as a sleep aid, was being
given to the defendant in amounts that would be sufficient to treat
depression. Dr. Edwalds' notes indicated that the defendant was
receiving 300 to 450 milligrams of trazodone each night, which Dr.
Gruenberg described as a therapeutic dose of that drug for
treatment of depression. She believed that a dose sufficient for
sleeping would be smaller, ranging from 50 to 150 milligrams.
The defense also presented testimony from the defendant's
father, Jess Burgess, who said that he noted a marked change in the
defendant's demeanor and behavior after the defendant was in jail.
Jess Burgess said that, during visits with his son at the jail, the
defendant became hostile and experienced difficulty concentrating.
Jess Burgess said that his son was neat and clean shaven before his
arrest but became disheveled and unkempt afterwards, and that his
son's residence was generally clean.
In rebuttal, the State introduced testimony from the
defendant's trial attorney, Raymond Conklin. Over the defendant's
objection that Conklin's testimony would violate the attorney-
client privilege, Conklin stated that the defendant had been able
to assist him in the preparation and presentation of a defense to
the charge in this case. Without relating the contents of any
conversations with the defendant, counsel said that the defendant
discussed all aspects of the trial with him, including voir dire,
the selection of defense witnesses, and the choice of questions for
prosecution and defense witnesses. Counsel further stated that the
defendant always appeared to be alert and coherent.
An additional rebuttal witness, Julianne Redington,
testified that she was frequently at the defendant's home during
the summer 1994 in her capacity as a visiting nurse. Redington
described the house as filthy and said that the defendant was
unkempt.
The trial judge later entered written findings. The judge
concluded that the medications given to the defendant in jail each
night at bedtime would not have had any psychotropic effect on the
defendant the following day. The judge noted that he presided at
trial and sentencing and that on all occasions the defendant
appeared alert. Relying on his own observations from the earlier
proceedings, the judge stated that the defendant "assisted in jury
selection and actively participated in his defense, communicated
frequently with counsel, wrote notes, and asked questions during
recess of counsel and the judge."
The judge further noted that he had not been aware during
the earlier proceedings of the defendant's use of the psychotropic
medications. The judge stated:
"The defendant never exhibited any obvious side
effects such as drowsiness, lack of memory,
inattentiveness or lack of appropriate gait at any
time during the proceedings. The defendant never
appeared to have any change in mood or demeanor and
freely related his physical condition (which
included bouts with diarrhea during the first two
days of jury selection), to the court. No
statements or actions by the defendant indicated
any mental disfunctioning or disability, or any
issue regarding fitness."
The trial judge concluded that the drugs received by the defendant
had no effect on the defendant's "mental functioning, mood or
demeanor in the courtroom."
The State acknowledges that under our decisions in People
v. Brandon, 162 Ill. 2d 450 (1994), People v. Gevas, 166 Ill. 2d
461 (1995), People v. Kinkead, 168 Ill. 2d 394 (1995), People v.
Birdsall, 172 Ill. 2d 464 (1996), and People v. Nitz, 173 Ill. 2d
151 (1996), this court could simply grant the present defendant a
new trial, without regard to his actual condition at the time of
the proceedings below, given his ingestion of psychotropic drugs
during the trial and sentencing hearing. The State argues, however,
that we should not invoke the practice of automatic reversal in
this case, in light of the evidence revealed at the special
supplemental hearing.
We agree with the State that a rule of automatic reversal
is not always appropriate. As this case demonstrates, there will be
some circumstances in which it can be said that the use of
psychotropic medication did not affect the defendant's mental
functioning in such a way that relief would be appropriate. We are
aware that we have previously declined to make use of retrospective
fitness hearings, noting the difficulty in determining, long after
the conclusion of the underlying proceedings, the degree of mental
functioning enjoyed then by the defendant. See People v. Birdsall,
172 Ill. 2d 464, 476 (1996) (citing Brandon and Gevas).
Nonetheless, we believe that, at least in the present case, there
are sufficient reasons to depart from our previous practice of
automatic reversal and to make a case-specific inquiry into the
psychotropic drugs administered to this particular defendant.
Our decision to consider the possible effects of the
drugs on the defendant finds support in the testimony of the
defendant's expert witness at the supplemental hearing. Dr. Linda
Gruenberg believed that neither doxepin nor lorazepam could have
had any effect on the defendant. She noted that the defendant had
discontinued taking doxepin months before trial, and that
lorazepam, which the defendant took at bedtime during the course of
the trial, would have dissipated overnight. As Dr. Gruenberg's
testimony demonstrates, we should not automatically assume that
every psychotropic drug will inevitably render the person taking it
unfit for purposes of trial or sentencing, and we therefore
conclude that retrospective hearings are sometimes proper. The
evidence in this case, including the prescribing doctor's
testimony, the judge's observations, and the defendant's own
testimony at trial, compels the conclusion that the defendant was
suffering no impairment as a result of his ingestion of
psychotropic drugs during the time of his trial and sentencing
hearing.
The defendant argues, however, that the scope of the
supplemental hearing held in this case exceeded the limited purpose
expressed in this court's remand order. At the outset of the
hearing, in response to a motion in limine filed by the defendant,
in which the defendant sought to restrict the evidence that the
State could introduce at the hearing, the State argued that a full
hearing should be held, and that the proceeding should not be
limited to determining simply what drugs defendant was taking when,
but also the effects of the drugs prescribed to the defendant. In
support of this broad inquiry, the State cited People v. Kinkead,
168 Ill. 2d 394, 414-15 (1995), in which this court noted that the
record in that case left a number of questions unanswered: "We
cannot reliably ascertain from the record when defendant began to
take Thorazine, the amount prescribed, the medical reasons it was
prescribed for him, or in what manner the drug might have
influenced defendant's mental functioning, mood, and demeanor in
the courtroom."
Although our order remanding the cause to the trial court
might not have fully anticipated the range of testimony introduced
at the hearing, we do not believe that we should ignore the
evidence that was presented on remand. Prior to the hearing, the
defendant was made aware of the scope of the hearing; at that time,
the trial judge denied a motion in limine by the defense that
sought to preclude the State from presenting testimony on the
possible effects of the drugs prescribed in this case. The
defendant was able to participate fully in the ensuing proceedings
and, further, was granted funds for the purpose of retaining his
own expert witness, Dr. Gruenberg, to provide testimony regarding
the effects of the drugs involved here.
The defendant raises the additional contention that the
testimony given by his trial counsel at the hearing on remand
violated the attorney-client privilege. The defendant maintains
that the privilege was not waived by his raising the fitness issue.
See People v. Knuckles, 165 Ill. 2d 125 (1995). We agree with the
defendant that at least some parts of trial counsel's testimony at
the remand hearing were given, over trial counsel's own objection,
in violation of the defendant's attorney-client privilege. Although
counsel, relying on his observations of his client, could freely
testify to the defendant's demeanor (People v. Williams, 97 Ill. 2d
252, 293-95 (1983)), counsel could not base his assessment of the
defendant's mental condition on privileged communications made by
the defendant in the course of the attorney-client relationship. 81
Am. Jur. 2d Witnesses §§401, 402 (1992). We have accordingly
limited our consideration of counsel's testimony to those portions
that do not violate the attorney-client privilege; we note that the
trial judge's findings do not appear to rely on that testimony.
In light of our decision here, we need not consider the
State's alternative argument that a recently amended version of the
psychotropic drug statute, section 104--21(a) of the Code of
Criminal Procedure of 1963 (725 ILCS 5/104--21(a) (West Supp.
1995)) controls the present appeal and that the defendant is not
entitled to any relief under the new provision. Cf. People v.
Birdsall, 172 Ill. 2d 464, 475 n.1 (1996) (summarily stating that
amended statute not applicable in that case).
In a separate argument, the defendant contends that he
was unfit to stand trial because he was suffering from stomach
cramps and diarrhea during jury selection. The defendant notes his
comment to the judge during voir dire that he was having difficulty
concentrating on the case. In addition, as further evidence of his
inability to assist his trial attorney, the defendant notes that
questioning of prospective jurors continued during several of his
many trips to the restroom.
The defendant failed to raise this issue at trial. In any
event, the evidence in the record does not present a bona fide
doubt of the defendant's fitness, necessary to trigger his right to
a fitness hearing under section 104--11 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/104--11 (West 1994)). In addition, a
review of the transcript reveals that the defendant expressly chose
to go forward with the proceedings, and did not want to delay them,
despite his complaint about not being able to concentrate. On only
three occasions did any voir dire examination occur while the
defendant was absent. At those times, the trial judge did not
immediately realize that the defendant had absented himself from
the proceedings; once the judge became aware of the defendant's
absence, the trial judge ceased questioning the prospective jurors
and waited for the defendant to return. Upon the defendant's
return, the trial judge repeated to the defendant what had occurred
in his absence. We find nothing in this case to suggest that the
defendant was unfit for trial, was unable to understand the process
of selecting a jury, or was otherwise unable to assist his
attorney.
The defendant next argues that the trial judge abused his
discretion in allowing the State to introduce, over a defense
objection, evidence of prior acts of abuse committed by the
defendant against the victim.
Evidence of prior acts of misconduct is admissible if
relevant for some purpose other than to show a propensity for
crime, and if the probative value of the evidence outweighs its
prejudicial effect. See People v. Illgen, 145 Ill. 2d 353, 364-65
(1991); People v. McKibbins, 96 Ill. 2d 176, 182 (1983). A trial
judge's decision allowing the introduction of evidence of this
nature will be upheld on review unless the ruling represents an
abuse of discretion. People v. Phillips, 127 Ill. 2d 499, 522
(1989).
As an initial matter, we must reject the defendant's
argument that this evidence was not sufficiently probative because,
the defendant says, none of the witnesses actually saw the
defendant commit any act of abuse toward the victim. We note that
the defendant did not make this objection in the proceedings below
in opposition to the introduction of this testimony. In any event,
we do not agree with the defendant's characterization of the
evidence as lacking probative value or of the defendant's conduct
as nonabusive. One witness, Mary Martin, testified that in late
July 1994 she saw the defendant grab a dog leash, fold it over, and
walk into the victim's bedroom. Martin then heard the sound of
something being hit and heard the victim cry out. Martin heard 5 to
10 strikes in all. Moments later, the defendant left the child's
bedroom, slammed the leash on a table, and told the child's mother
to use the leash in the future. Martin afterwards saw fresh welts
from the top of the victim's back down to his legs.
Another witness, Margaret Miller, testified that in July
or August 1994 she saw the defendant spank the victim on the
bottom, leaving signs of his handprints on the child's skin. This
witness also saw the defendant push the victim into a corner,
causing him to hit the wall. A neighbor, Debra Donovan, testified
that sometime after the victim and his mother moved in with the
defendant in June 1994, she saw the defendant kick Matthew, causing
the child's legs to fly off the ground. Allen Williamson, who lived
in the defendant's residence for one or two months that summer,
said that the defendant would spank the child four or five times a
day. Williamson stated that the defendant generally took Matthew to
another room for that purpose, but the witness said that he could
hear the child crying.
We cannot say that the trial judge in the present case
abused his discretion in allowing the prosecution to introduce the
evidence of the defendant's prior acts of abuse. The defense theory
at trial was that the three-year-old victim sustained a series of
accidental injuries on the day of his death. Although the defendant
admitted striking the child several times during that afternoon, he
denied that those blows were deadly, and he claimed that the fatal
injury was caused by the accidental collapse of a box spring on the
child. To counter the defense theory, the prosecution appropriately
sought to present evidence of prior acts of abuse committed by the
defendant against the victim, to show the presence of intent and
the absence of accident. See People v. Oaks, 169 Ill. 2d 409, 453-
55 (1996); People v. Lucas, 132 Ill. 2d 399, 429 (1989); People v.
Platter, 89 Ill. App. 3d 803, 820-22 (1980). Although the earlier
instances of abuse were not in all respects like the fatal injuries
to the child's abdomen and head, only general similarities between
the different acts are necessary when such evidence is offered
simply to show an absence of an innocent frame of mind, or the
presence of criminal intent. Oaks, 169 Ill. 2d at 454; Illgen, 145
Ill. 2d at 373.
In further opposition to this evidence, the defendant
notes that the victim's mother, Deena Kent, was also abusive toward
the victim. We do not believe, however, that evidence of Kent's
misconduct alters the admissibility of testimony detailing the
defendant's own prior acts of abuse. We conclude that the testimony
of these witnesses was properly admitted.
The defendant, in his last contention relating to the
guilt phase of the proceedings, argues that error occurred in the
introduction of testimony from two expert witnesses that the
numerous bruises incurred by the victim in this case were not
consistent with accidental injuries. Defense counsel made no
objection to these portions of the testimony of Dr. Jumbelic and
Dr. Frasier, nor did counsel raise the issue in the defendant's
post-judgment motion. To surmount the effects of the waiver, the
defendant also argues that the admission of the testimony was plain
error and, further, that defense counsel was ineffective for
failing to object to it.
This court's recent opinion in People v. Oaks, 169 Ill.
2d 409, 460-62 (1996), is dispositive of the defendant's challenge
to this evidence. In Oaks, we found no error in a physician's
testimony that a child's death was not accidentally caused. The
witness at issue in Oaks was, incidentally, one of the witnesses in
this case whose testimony the present defendant challenges. In
sustaining the opinion testimony offered by Dr. Frasier in that
case, the Oaks court explained:
"This court has stated that, generally, an
individual will be permitted to testify as an
expert if his experience and qualifications afford
him knowledge which is not common to lay persons
and where such testimony will aid the trier of fact
in reaching its conclusion. (People v. Enis (1990),
139 Ill. 2d 264, 288; People v. Jordan (1984), 103
Ill. 2d 192, 208.) In this case, we conclude that
the lay jury needed the expert testimony of Dr.
Frasier to determine whether, based on their
severity, the victim's injuries were caused
intentionally or accidentally." Oaks, 169 Ill. 2d
at 461.
As in Oaks, one of the issues in the present case was
whether the victim's injuries occurred accidentally, as the
defendant claimed. Dr. Jumbelic and Dr. Frasier were qualified as
experts on this subject, and the matter on which they testified was
outside the jury s range of competence. See Oaks, 169 Ill. 2d at
461. We find no error in the introduction of their testimony.
Finally, we decline the defendant's invitation to
overrule Oaks. Contrary to the defendant's contention, there is no
inconsistency between Oaks and our cases barring the introduction,
at a death penalty hearing, of expert testimony on the deterrent
value of capital punishment. The death penalty is an authorized
sentence in Illinois, and testimony regarding its efficacy would
not be relevant to the decision made by the sentencer. People v.
Williams, 97 Ill. 2d 252, 300-01 (1983).
II
The defendant next raises a series of challenges to the
capital sentencing hearing conducted in this case. The defendant
first argues that his trial attorney rendered ineffective
assistance when he in essence conceded his client's eligibility for
the death penalty under one of the two statutory aggravating
circumstances alleged by the States.
At the first stage of the bifurcated sentencing hearing,
the State sought to qualify the defendant for the death penalty
under two separate statutory aggravating circumstances: murder in
the course of a specified felony, in this case, criminal sexual
assault (720 ILCS 5/9--1(b)(6) (West 1994)), and murder of child in
a brutal and heinous manner (720 ILCS 5/9--1(b)(7) (West 1994)).
The defendant complains that his trial attorney
challenged only the application of section 9--1(b)(6), and did not
contest, and even conceded, the defendant's eligibility under
section 9--1(b)(7). As evidence of counsel's ineffectiveness, the
defendant cites a number of comments made by trial counsel in
opening statement and closing argument at the first stage of the
sentencing hearing. In opening statement counsel told the jury that
the defendant "may well qualify for the death penalty" and that he
"may well be eligible" for that sentence. Later, in closing
argument, defense counsel stated:
"If you want to, or as you consider all the
evidence, I'll tell you that if you so desire
there's enough evidence that you can find the
murder was, or the death was, resulted from brutal
and heinous behavior, but I want to talk to you
about the other [statutory aggravating
circumstance] for a while."
Defense counsel then challenged the prosecution's evidence that a
sexual assault had occurred.
A claim of ineffective assistance of counsel is generally
measured against the two-part standard announced by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668,
687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To
succeed on a claim of ineffective assistance under Strickland, a
defendant must establish both that counsel's performance was
deficient and that the deficiency proved to be prejudicial.
Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at
2064. Judicial scrutiny of counsel's performance is highly
deferential under Strickland, and a court considering an
ineffectiveness claim "must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance." Strickland, 466 U.S. at 689, 80 L. Ed. 2d
at 694, 104 S. Ct. at 2065. To establish prejudice resulting from
an asserted deficiency in counsel's performance, "[t]he defendant
must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Strickland, 466
U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.
Only in a few instances will prejudice be presumed,
making a separate inquiry into prejudice unnecessary. See United
States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039
(1984). In Cronic the Supreme Court noted that when "counsel
entirely fails to subject the prosecution's case to meaningful
adversarial testing, then there has been a denial of Sixth
Amendment rights that makes the adversary process itself
presumptively unreliable." Cronic, 466 U.S. at 659, 80 L. Ed. 2d at
668, 104 S. Ct. at 2047. In those circumstance prejudice to a
defendant may be presumed. Strickland, 466 U.S. at 692, 80 L. Ed.
2d at 696, 104 S. Ct. at 2067. The defendant believes that this is
such a case, citing People v. Hattery, 109 Ill. 2d 449 (1985), in
which this court presumed that the defendant was prejudiced by
trial counsel's representation. In Hattery, counsel conceded, in
opening statement, his client's guilt to murder charges, introduced
no evidence at trial, and failed to make a closing argument to the
jury. The present defendant argues that a presumption of prejudice
is necessary in this case, noting that there is no possible
strategic value in being found eligible under one, rather than two,
aggravating circumstances.
We believe that the present case is more similar to
People v. Rissley, 165 Ill. 2d 364 (1995), than it is to Hattery.
Defense counsel in Rissley conceded the defendant's eligibility for
the death penalty under section 9--1(b)(6) but sought to challenge
the applicability of section 9--1(b)(7), the reverse of the
situation here. This court found that counsel's conduct did not
amount to plain error and noted that "defense counsel's apparent
concession regarding eligibility under section 9--1(b)(6) came in
the context of mounting a more pointed challenge against
eligibility under section 9--1(b)(7)." Rissley, 165 Ill. 2d at 397.
At trial, counsel had challenged the prosecution's theory
of the case, and the defendant had provided the jury with his own
account of the events leading up to the victim's death. The jury
rejected the defense contentions, however. When the sentencing
hearing convened, defense counsel apparently believed that he could
possibly defeat one of the aggravating circumstances but not the
other, and that he would lose credibility with the jury if he
attempted to argue that the 120 injuries sustained by the victim
were not the result of brutal and heinous behavior. Notwithstanding
the comments cited by the defendant, counsel's closing argument at
the first stage of the hearing reminded the jury of the State s
evidentiary burden in establishing either aggravating circumstance,
and defense counsel argued further that there was no presumption
that the defendant was eligible for the death penalty.
For these reasons, we believe that Hattery is
inapplicable here. See People v. Johnson, 128 Ill. 2d 253, 269-71
(1989). The present defendant, if he is to prevail on his claim of
ineffective assistance, must therefore establish both a deficiency
in counsel's performance and prejudice resulting from the asserted
deficiency. Failure to establish either proposition will prove
fatal to the claim. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at
699, 104 S. Ct. at 2069; People v. Harris, 164 Ill. 2d 322, 349
(1994). In applying the Strickland standard, a reviewing court
"need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies." Strickland, 466 U.S. at 697,
80 L. Ed. 2d at 699, 104 S. Ct. at 2069.
We are unable to conclude that counsel's alleged
deficiency had any effect on the outcome of the first stage of the
sentencing hearing. Under the prejudice inquiry, "An error by
counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment." Strickland, 466 U.S. at 691, 80 L.
Ed. 2d at 696, 104 S. Ct. at 2066. The evidence of the defendant's
eligibility under section 9--1(b)(7) was overwhelming, and we do
not believe that there is a reasonable probability that the result
of the first stage of the sentencing hearing would have been
different if counsel had challenged the defendant's qualification
for the death penalty under section 9--1(b)(7). That provision
renders a capital defendant eligible for the death penalty if "the
murdered individual was under 12 years of age and the death
resulted from exceptionally brutal or heinous behavior indicative
of wanton cruelty." 720 ILCS 5/9--1(b)(7) (West 1994). The jury had
already found the defendant guilty of the first degree murder of
the child. Both Dr. Mary Jumbelic and Dr. Lori Frasier had
testified that the victim's numerous injuries were not incurred
accidentally, and the jury had rejected the defendant's claim that
the child died as a result of an accident. Dr. Frasier had further
testified that the severe injuries sustained by the victim were
comparable to those that a child would incur if he were to fall 20
feet onto a concrete surface, or were to be thrown from an
automobile in a collision. On this record, we conclude that the
remarks of counsel challenged here had no effect on the jury's
decision to find the defendant eligible for the death penalty under
section 9--1(b)(7).
In an additional contention related to the brutal and
heinous aggravating circumstance found in section 9--1(b)(7), the
defendant briefly argues that trial counsel was ineffective for
failing to make any challenge to the constitutionality of that
provision. The defendant asserts that the terms of the statute are
unconstitutionally vague. See Maynard v. Cartwright, 486 U.S. 356,
100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988).
The present argument assumes, of course, that the
provision is constitutionally infirm and therefore susceptible to
challenge. This court has previously determined that the
aggravating circumstance set forth in section 9--1(b)(7) passes
constitutional muster, however, when it is coupled with a limiting
construction, and the defendant makes no challenge to the limiting
construction provided to the sentencing jury in the present case.
A limiting construction may save a statutory aggravating
circumstance that must otherwise be considered unconstitutionally
vague under the eighth amendment. See Arave v. Creech, 507 U.S.
463, 471, 123 L. Ed. 2d 188, 198, 113 S. Ct. 1534, 1541 (1993)
("Unlike the Court of Appeals, we do not believe it is necessary to
decide whether the statutory phrase `utter disregard for human
life' itself passes constitutional muster. The Idaho Supreme Court
has adopted a limiting construction, and we believe that
construction meets constitutional requirements"); Walton v.
Arizona, 497 U.S. 639, 654, 111 L. Ed. 2d 511, 529, 110 S. Ct.
3047, 3057 (1990) ("In this case there is no serious argument that
Arizona's `especially heinous, cruel or depraved' aggravating
factor is not facially vague. But the Arizona Supreme Court has
sought to give substance to the operative terms, and we find that
its construction meets constitutional requirements").
In People v. Lucas, 132 Ill. 2d 399, 444 (1989), the
court agreed with the defendant's argument that section 9--1(b)(7)
"was unconstitutionally applied in his case because his conduct did
not rise to the level of `exceptionally brutal or heinous'
behavior." In resolving that question, the court looked to case law
and dictionary definitions of the relevant terms and noted that
"[c]ases in which this court has found brutal or heinous behavior
to be present have generally involved prolonged pain, torture or
premeditation." Lucas, 132 Ill. 2d at 445. The court found that the
defendant's actions did not meet any of those criteria, and the
court thus concluded that the defendant was not eligible for the
death penalty on the basis of the "exceptionally brutal"
aggravating circumstance contained in section 9--1(b)(7).
Later, in People v. Tye, 141 Ill. 2d 1 (1990), and in
People v. Fair, 159 Ill. 2d 51 (1994), this court undertook a
similar analysis, measuring the actions of the defendants in those
cases against the definitions that had been formulated in Lucas. In
both Tye and Fair the court concluded that the defendants had acted
with the requisite brutality and upheld the determinations that the
defendants were eligible for the death penalty under section 9--
1(b)(7).
In the present case, the trial judge specifically
instructed the jury on the meanings of the terms used in section 9-
-1(b)(7). See Illinois Pattern Jury Instructions, Criminal, No.
7B.07 (3d ed. Supp. 1996). The defendant has not challenged the
definitions contained in the pattern instructions and given to the
jurors in this case. Because the defendant has not established the
predicate for an ineffective-assistance claim, we need not consider
this issue further.
In his next series of arguments, the defendant raises
several challenges to the prosecutor's closing argument at the
second stage of the capital sentencing hearing. The defendant first
complains of the following comment, made by the prosecutor in
summation:
"This defendant referred to Matthew at one time
during his testimony as the kid that died. He's
never said he's sorry. You heard his father
testify, and I asked him if he ever said he's
sorry. He's never said that. He's cold. He's evil.
He's devoid of mercy, compassion. He's devoid of
human values."
Defense counsel did not object to the preceding remarks or raise
the issue in the defendant's post-judgment motion. The defendant
now contends that the prosecutor's comments violated his fifth
amendment privilege against compelled self-incrimination.
Acknowledging counsel's procedural default of the issue, the
defendant asks that we consider this claim under the rubric of
either plain error or ineffective assistance of counsel.
We do not agree with the defendant that the remarks made
in this case were an impermissible commentary on the defendant s
failure to incriminate himself. "This court has consistently held
that a convicted defendant s remorse or the absence of it is a
proper subject for consideration at sentencing." People v. Barrow,
133 Ill. 2d 226, 281 (1989). See also People v. Erickson, 117 Ill.
2d 271, 302 (1987); People v. Ward, 113 Ill. 2d 516, 527-32 (1986);
People v. Neal, 111 Ill. 2d 180, 196 (1985); People v. Albanese,
102 Ill. 2d 54, 80-81 (1984). The challenged remarks here derived
not from the defendant's failure or refusal to incriminate himself,
but from the manner in which the defendant referred to the child
victim in this case in his testimony, when he offhandedly described
Matthew Mote as "the kid that died," and from the testimony of the
defendant's father, who said that the defendant had not expressed
remorse for the child's death. In the present case, the prosecutor
did not specifically refer to the defendant's failure to
incriminate himself, or seek to cast the defendant s assertion of
that right in an unfavorable light. Rather, the prosecutor's
statements should be construed simply as a comment on the
defendant's apparent lack of remorse for the child's death. These
remarks were clearly related to the defendant's own testimony at
trial and to the testimony of the defendant's father at the
sentencing hearing.
In sum, we conclude that the challenged comments were
based on the evidence presented in this case and were not
impermissible remarks on the defendant's failure to incriminate
himself. Because we have found that the prosecutor's argument was
proper, we need not consider whether plain error occurred or
whether defense counsel was ineffective for failing to preserve an
objection to the remarks.
The defendant next complains of two further portions of
the prosecutor's closing argument at the second stage of the
sentencing hearing. The defendant contends that these comments
improperly reduced the jury's sense of responsibility for the
decision it was being asked to make. In summation, the prosecutor
stated:
"I didn't choose to be here. And you didn't
choose to be here. There's only one person that's
responsible for us being here today. He wrote the
book. He wrote the story. He wrote all the plays
and he alone is responsible. Ray Burgess wrote this
story, the story that's brought us together to do
what we have to do."
Later, in rebuttal, the prosecutor stated:
"I made the decision in this case to go for
the death penalty on behalf of the People of the
State of Illinois. But there's only one person and
one person only that has to shoulder any blame for
anything that happened here today or anything
that's going to happen. And that's Ray Burgess.
He's the only person that needs to take
responsibility for what he did and for what is
going to happen to him."
The defendant contends that the preceding comments
violated Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231,
105 S. Ct. 2633 (1985), by minimizing the jury's role in the
capital sentencing process. In Caldwell the Supreme Court found
constitutional error in a prosecutor's argument, to which defense
objections were overruled, that a decision by the jury to impose
the death penalty would not be final because it would be subject to
judicial review. In the present case, defense counsel did not
object to these portions of the prosecutor's closing argument or
raise the issue in the post-judgment motion. The defendant
therefore contends that the prosecutor's remarks amounted to plain
error and, further, that trial counsel was ineffective for failing
to preserve this issue.
Regarding the specific comments challenged here, the
defendant contends that he could not have been literally
responsible for convening the sentencing hearing because only the
State may request one. Further, the defendant believes that the
comment on the prosecutor's decision to seek the death penalty
impermissibly evinces a shared sense of responsibility for that
sentence. Finally, the defendant contends that the references to
his responsibility for the hearing would have improperly diminished
the jury's sense of its own duty.
The parties are allowed wide latitude in closing
argument, and comments of counsel must be evaluated in the context
in which they were made. See People v. Flores, 153 Ill. 2d 264, 289
(1992); People v. Fields, 135 Ill. 2d 18, 62, 64 (1990). We do not
believe that the remarks challenged here would have improperly
affected the jury's understanding of its unique part in the capital
sentencing process. Considering the prosecutor's remarks in
context, we believe that the jurors would have understood them
simply as a comment on the evidence in the case and the chain of
circumstances that led to the sentencing hearing, and not as a
literal description of the law governing the jury's role or
determination. See People v. Cole, 172 Ill. 2d 85, 112-13 (1996);
People v. Page, 155 Ill. 2d 232, 280-82 (1993). In the course of
his remarks, the prosecutor reviewed the evidence in aggravation
and mitigation and spoke of the part played by the jury in the
sentencing process. The prosecutor noted on several occasions that
the decision the jury was required to make was a difficult one. At
the conclusion of the hearing, the trial judge correctly instructed
the jury on its responsibilities, as well as on the purpose of
closing argument. We do not believe that the jury would have
interpreted the prosecutor's comments as contradicting those
instructions, or that the jury was otherwise misled regarding its
true role in the sentencing process. See People v. Pasch, 152 Ill.
2d 133, 204-06 (1992). Accordingly, we need not determine whether
plain error occurred, or whether defense counsel was ineffective
for failing to object to the prosecutor's remarks.
The defendant alleges one further instance of misconduct
by the State during closing argument at the second stage of the
sentencing hearing. The defendant cites the following comments by
the prosecutor in summation:
"[Matthew Mote] didn't have a choice whether he was
going to live or die because he had no control over
the situation. The only person who had a choice on
September 24 was Ray Burgess and he made it. He's
had all his rights guaranteed. He had a right to
trial by jury. He's got a right to an eligibility
hearing. He's got a right to a sentencing hearing,
got a right to be represented by an attorney and
have his day in court."
The prosecutor went on to say that justice would be served in this
case if the jury returned a sentence of death. The defendant argues
that the preceding comments denied him due process and violated
each of the separate rights enumerated by the prosecutor. In this
regard, the defendant correctly notes that an offender may not
receive a more severe punishment simply because he has chosen to
invoke his constitutional rights. See United States v. Jackson, 390
U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968).
The jury was already aware, of course, that the defendant
possessed the constitutional and statutory rights listed by the
prosecutor. The defendant construes the preceding comments,
however, as an attempt to inflame the jury by contrasting the
defendant, and the rights he enjoyed, with the young victim, who
did not have the benefit of those same procedural safeguards before
his death. Assuming that this was the prosecutor's purpose and that
the comments were improper, we do not believe that the present
defendant may prevail on a claim of either plain error or
ineffective assistance of counsel. The plain error doctrine
represents a limited exception to the waiver rule. Contrary to the
defendant's contention, we do not believe that the question rises
to the level of plain error. See 134 Ill. 2d R. 615(a) (On review,
"[p]lain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the
trial court"). The plain-error doctrine is appropriately invoked
when the evidence in the case is closely balanced, or when the
alleged error is so fundamental that it denies the defendant a fair
proceeding. People v. Banks, 161 Ill. 2d 119, 143 (1994); People v.
Childress, 158 Ill. 2d 275, 300 (1994); People v. Bean, 137 Ill. 2d
65, 80 (1990). We do not believe that either element has been
satisfied here. The aggravating evidence in this case was
overwhelming, consisting chiefly of the brutal circumstances of the
defendant's crimes. The comment at issue was isolated, and the
prosecutor did not emphasize the point. The claimed error was not
of such magnitude that it could have deprived the defendant of a
fair sentencing hearing.
We must also reject the defendant's alternative argument
that trial counsel was ineffective for failing to object to the
comments challenged here. Even if counsel was deficient, the
defendant cannot establish prejudice from the alleged deficiency.
As we have noted, this portion of the prosecutor's closing argument
was brief and unrepeated, and we do not believe that it had any
effect on the jury's consideration of the aggravating and
mitigating evidence in the case, or on the jury's ultimate
determination to impose the death sentence.
III
As a final matter, the defendant raises a number of
challenges to the constitutionality of the Illinois death penalty
statute, section 9--1 of the Criminal Code of 1961 (720 ILCS 5/9--1
(West 1994)). This court has repeatedly rejected the same arguments
in the past, and the defendant provides no grounds that would
warrant our reaching a different result in this case.
The defendant first takes issue with the requirement in
the statute that the death sentence be imposed unless there exists
mitigating evidence sufficient to preclude it. 720 ILCS 5/9--1(g),
(h) (West 1994). The defendant believes that this criterion
prevents the sentencing authority from giving full effect to
mitigating evidence introduced in a capital defendant's behalf. We
have previously rejected the same contention, finding that it
"rests on a strained interpretation of the statutory language"
(People v. Strickland, 154 Ill. 2d 489, 539 (1992)), and we adhere
to that holding. See People v. Page, 155 Ill. 2d 232, 283 (1993);
People v. Hampton, 149 Ill. 2d 71, 116-17 (1992).
The defendant also argues that various aspects of the
death penalty statute invite the arbitrary and capricious
imposition of that sentence. We have consistently affirmed the
validity of these procedures, however, and thus have no reason to
find them cumulatively unconstitutional.
Our cases have held that the statute is not invalid for
the discretion allowed to the prosecutor in deciding whether to
seek a sentence of death in a particular case. People v. Lewis, 88
Ill. 2d 129, 146 (1981); People ex rel. Carey v. Cousins, 77 Ill.
2d 531, 534-43 (1979). We have also held that the statute is not
invalid for failing to require the prosecution to provide the
defense with pretrial notice of its intent to seek a sentence of
death (People v. Silagy, 101 Ill. 2d 147, 161-62 (1984); People v.
Gaines, 88 Ill. 2d 342, 369 (1981)) or of pretrial notice of the
aggravating evidence to be used at a capital sentencing hearing
(People v. King, 109 Ill. 2d 514, 547 (1986); People v. Albanese,
104 Ill. 2d 504, 540 (1984); Gaines, 88 Ill. 2d at 369). Nor is the
statute invalid for not requiring the sentencer to provide a
written memorial of its findings in the case. King, 109 Ill. 2d at
550-51; People v. Stewart, 104 Ill. 2d 463, 499 (1984); People v.
Brownell, 79 Ill. 2d 508, 541-44 (1980). The death penalty statute
is not invalid for failing to impose a burden of persuasion on the
prosecution at the second stage of the hearing (People v. Jones,
123 Ill. 2d 387, 426 (1988); People v. Eddmonds, 101 Ill. 2d 44, 68
(1984); People v. Free, 94 Ill. 2d 378, 421 (1983)), and the
statute does not invalidly impose on the defense a burden of
establishing that a sentence other than death should be imposed
(People v. Fields, 135 Ill. 2d 18, 76 (1990); People v. Orange, 121
Ill. 2d 364, 390 (1988); People v. Caballero, 102 Ill. 2d 23, 49
(1984)). In those instances in which there is no mandatory
alternative to a sentence of death, there is no requirement that
the sentencing jury be informed of the various other sentences that
may be imposed. People v. Phillips, 127 Ill. 2d 499, 543 (1989);
People v. Albanese, 102 Ill. 2d 54, 81 (1984). Comparative
proportionality review is not required by the federal constitution
(Pulley v. Harris, 465 U.S. 37, 79 L. Ed. 2d 29, 104 S. Ct. 871
(1984)), and the Illinois statute is not invalid for failing to
compel such review (King, 109 Ill. 2d at 551; People v. Stewart,
104 Ill. 2d 463, 499 (1984); People v. Kubat, 94 Ill. 2d 437, 502-
04 (1983). Given the extensive precedent sustaining these aspects
of the statutory scheme, we reject the defendant's argument that,
in combination, these features of the statute threaten its
arbitrary and capricious imposition. People v. Harris, 164 Ill. 2d
322, 352 (1994); People v. Pitsonbarger, 142 Ill. 2d 353, 409
(1990).
* * *
For the reasons stated, the judgment of the circuit court
of Henry County is affirmed. The clerk of this court is directed to
enter an order setting Tuesday, September 16, 1997, as the date on
which the sentence of death entered in the circuit court of Henry
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 the
defendant is now confined.
Judgment affirmed.
JUSTICE HARRISON, dissenting:
Once the trial court determined on remand that defendant
was taking psychotropic drugs at the time of his trial and
sentencing, no further inquiry was authorized or appropriate. The
rule is clear and the remedy is automatic. Defendant is entitled to
a new trial under People v. Brandon, 162 Ill. 2d 450 (1994), and
the cases we have decided in accordance with Brandon.
The trial court's decision to take additional evidence
beyond the scope of our remand instructions can only be understood
as evincing dissatisfaction by the trial court with the Brandon
rule. The court was obviously searching for a way to circumvent our
decisions, but the decisions of the supreme court are not optional,
nor are our orders. Where we issue clear and unambiguous directions
to a circuit court, those directions must be strictly followed. Any
action taken by the circuit court beyond those directions is
outside the scope of its authority and void for lack of
jurisdiction. People ex rel. Daley v. Schreier, 92 Ill. 2d 271,
276-77 (1982).
By considering the additional evidence taken by the trial
court here, my colleagues have ignored this principle completely.
In so doing, they may have dealt a serious blow to our authority as
an institution. Our power depends on obedience to our decisions,
but if circuit courts can depart from those decisions whenever a
majority on this court considers it expedient in a particular case,
we will quickly find our power gone. Lower courts will have no
incentive to do what we have instructed them to do because they
know that, depending on the passing fancy of this court, they are
very likely to get away with it.
In ruling as it does, the majority makes no effort at all
to distinguish this case from Brandon and its progeny. It tells us
that there are "sufficient reasons" to depart from past precedent
"at least in the present case" (slip op. at 8) but nowhere does it
give its reasons or explain what it is about this case that makes
it different. The majority simply proceeds to make an after-the-
fact assessment of defendant's fitness at the time of trial, the
very practice this court has repeatedly and consistently rejected.
People v. Gevas, 166 Ill. 2d 461, 471 (1995); People v. Birdsall,
172 Ill. 2d 464, 480 (1996).
The only conclusion one can reasonably draw from all of
this is that the Brandon line of cases, as recent as it is, has
been suddenly and inexplicably overruled. Whatever one thinks of
the wisdom of Brandon, such action is improper. Once a principle of
law has been established by the court, the doctrine of stare
decisis dictates that it should not be discarded simply because
some members of the court disagree or have changed their minds. As
this court explained in Chicago Bar Ass'n v. Illinois State Board
of Elections, 161 Ill. 2d 502, 510 (1994):
"The doctrine of stare decisis is the means by
which courts ensure that the law will not merely
change erratically, but will develop in a
principled and intelligible fashion. Stare decisis
permits society to presume that fundamental
principles are established in the law rather than
in the proclivities of individuals."
The majority's decision today is directly contrary to these
principles. Indeed, we have no stare decisis under the majority's
opinion in this case. The doctrine is dead.
If there is no stare decisis and if lower courts are now
free to disregard our orders, it is difficult for me to see what
practical function we serve as a court of review. One thing is sure
though. Illinois jurisprudence has seen brighter moments.
JUSTICE FREEMAN joins in this dissent.