delivered the opinion of the court:
The defendant, Robert K. Carlson, Sr., was sentenced to death in the circuit court of Lake County. The appeal has come directly to this court. (Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill. 2d R. 603.) The defendant argues that numerous errors were committed in his convictions on two murder charges and an arson charge. He also challenges the validity of the imposition of the death penalty.
The defendant was charged by an indictment in Lake County with the murder of his former wife, Rosemary Carlson, and the arson of her residence. He was also indicted for the murder of Waukegan police officer Harry White and for the attempted murder of Waukegan police officer Charles Mason. The attempted murder charge was later dropped. On defendant’s motion, the two cases were consolidated for trial. The defendant pleaded not guilty to the charges. The jury found the defendant guilty of one count of arson and two counts of murder. The State requested that a hearing be conducted in order to determine the appropriateness of the imposition of the death penalty in the case involving the murder of Officer White. (See Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d).) The defendant requested that there be only one sentencing hearing for all convictions. He also waived the right to have a jury determination of whether the death penalty should be imposed. (See Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(d).) Following the penalty hearing the court sentenced the defendant to 6 1/3 to 20 years for arson and 50 to 100 years for the murder of his former wife. The court sentenced the defendant to death for the murder of the Waukegan policeman, White. The trial court entered an order staying the execution of the death sentence, pending direct appeal to this court.
On August 12, 1977, after 19 years of marriage, Rosemary Carlson was granted a divorce from the defendant. In this case the defendant testified that he had agreed not to contest the divorce on the condition that Rosemary would not entertain men at the house. Carlson quitclaimed his interest in the marital residence to Rosemary. Although he moved out of the house, the defendant and Rosemary continued to see one another. Carlson testified that remarriage was planned for October 18, 1977; Rosemary, however, postponed the wedding date. On Wednesday, November 9, 1977, Rosemary called the defendant and told him that because she had a “boyfriend,” she would not be seeing the defendant as frequently as before. Before the defendant went to work the following day, Rosemary came to his apartment for money. During this visit, she again discussed her boyfriend. The defendant testified that he was “stunned” by the news of her boyfriend. He stated that he decided to go to Las Vegas and he arranged to buy a gun at work purportedly for protection on his trip. On Friday, November 11, 1977, the defendant purchased a gun and ammunition from a coworker. He testified that after work he wrapped the loaded gun in a towel and placed it on his car’s front seat. The next day, Saturday, November 12, 1977, the defendant went to the bank, withdrew the money in his account and cashed some traveler’s checks. In the evening the defendant drove past Rosemary’s house twice with the purported intent to give Rosemary money. Each time he saw a strange car in the driveway, so he did not stop. The defendant “got mad,” assuming that Rosemary was entertaining a man at the house, contrary to the oral agreement they had made. He purchased two gasoline cans and filled them with gasoline. He placed the filled gasoline cans in the trunk of his car. He testified that he planned to burn the house down the next day when Rosemary drove their son Eric to school. He stated, however, that late that night, while lying in bed, he realized that he could not burn down the house because it would cause Rosemary to go to her boyfriend.
The following day, Sunday, November 13, 1977, Rosemary called the defendant to ask him to accompany her and Eric to Lake Geneva, Wisconsin, where Eric attended school. Before going, he picked up some medication for Rosemary. At the school, the defendant put money in both Eric’s personal account and in his quartermaster account. After leaving Eric at the school, the defendant and Rosemary shopped and he bought her a sweater. They had dinner in Lake Geneva and returned to Rosemary’s house. On the way home, Rosemary again talked about her boyfriend and showed the defendant a diamond engagement ring which had been given to her by her male friend. She told the defendant that her boyfriend wanted to build her a house and buy her a business. She informed Carlson that her boyfriend put $3,000 in a savings account for her and bought her a vacuum cleaner. Upon arriving at the house the defendant noticed a new typewriter, television and coin bank. Rosemary told him that these were gifts from her boyfriend and that the coin bank was given to her when her friend opened the savings account. The defendant testified that seeing these items made him realize that everything his wife had said was true.
Carlson stated that the next thing he could remember was lifting his former wife from the floor. Expert testimony at trial revealed that Rosemary had been shot 10 times. It is not clear from the evidence, but at some time on the same day, Sunday, the defendant had brought the gasoline cans into the house. On his way in, some children playing near the house saw the defendant, but they testified he was not carrying anything resembling gasoline cans. However, it is uncontroverted that the defendant poured gasoline throughout three rooms and set fire to the house. Upon leaving the house, the defendant greeted some of the boys playing in front of the house. Within minutes, the boys noticed flames in the house and called the fire department. The fire was reported at approximately 6:20 p.m. Firemen found Rosemary’s body in the debris. An autopsy showed death to be a result of multiple gunshot wounds. Testimony was admitted which indicated that, since there was little soot or smoke in her lungs, Rosemary was dead before the fire began.
After leaving the house, the defendant proceeded to a bar. There he encountered a coworker, Stanley Wilson. After an unsuccessful attempt to telephone his daughter, the defendant told Wilson of his plans to leave for California that night. He gave Wilson $3,200 in cash in an envelope to pay for Eric’s education. He asked that the money be forwarded to his daughter who resided in Wisconsin. The defendant also sold Wilson his tools and television set for $200. After these transactions, the defendant and Wilson continued to sit and drink in the bar for some time. At approximately 9:40 p.m., three police officers and an assistant State’s Attorney came to the bar to arrest the defendant. Another police officer, Sergeant Hauri, the only one in uniform, entered minutes later. The defendant testified that he was aware that the persons were police officers. Captain Mason, Sergeant Joiner and the deceased, Sergeant White, approached the area where the defendant and Wilson were seated on bar stools. Captain Mason stood behind Wilson and, believing Wilson to be the defendant, mistakenly grabbed Wilson and said, “Bob, you’re under arrest.” Sergeant White stood behind the defendant and said, “Mr. Carlson, you have to come with us.” It is uncontroverted that as the officers approached, the defendant had taken a gun out of his waistband. According to the testimony of Sergeant Hauri, the defendant faced Sergeant White, and two muzzle flashes reflected off of Sergeant White’s shirt. White fell toward the defendant, pulling the defendant to the floor. They struggled for several seconds on the floor, during which time three or four more shots were fired by the defendant. Another bullet hit White and a bullet went through the defendant’s upper left arm. Captain Mason was shot through his left ankle and sustained an injury to his left buttocks due to a ricocheted shot. Sergeant Joiner finally managed to wrest the gun from the defendant’s right hand. White was taken to a hospital where he died that evening. The autopsy revealed that White died of bullet wounds to the chest.
At the trial the defendant raised the defense of insanity as to the charge of murder of his ex-wife, Rosemary, and as to the arson charge. Concerning the charge of murder of Sergeant White, it was the defendant’s contention that when the police officer approached him in the tavern, he was going to commit suicide and as he was attempting to do so, the officer was shot during the struggle that ensued. It is the defendant’s position that he is therefore guilty of no more than involuntary manslaughter as to Sergeant White’s death.
Before trial the public defender filed a motion requesting that the prospective jurors not be questioned about their views on the imposition of the death penalty due to the alleged unconstitutionality of the statute. This motion was denied. The State had informed the court and counsel that the death penalty would be sought. During voir dire examination several jurors were excused due to their response that they would conscientiously be unable to impose the death sentence.
Following conviction the court held a death sentencing hearing pursuant to the State’s request. Although the State informed the court that it was seeking the death penalty only for the conviction based on the murder of Sergeant White, counsel mutually agreed to consolidate the convictions into one sentencing hearing. Evidence was heard in aggravation to establish beyond a reasonable doubt that White was a police officer on November 13, 1977; that he had been assigned to investigate the homicide of Rosemary Carlson; that the defendant was more than 18 years old; and that the defendant knew that White was a police officer in the exercise of his official duties.
In mitigation, the defendant offered the testimony of Dr. Gerald Frank, an internist who treated the defendant for five years. His testimony will be discussed later. He observed that during a year or two prior to November 1977 the defendant had undergone a process of “physical and emotional deterioration.” Dr. Leo Goldman, a psychiatrist, testified in mitigation that the defendant was “most unlikely to commit such an offense” in the future, and that the defendant was “extremely distraught” at the time he shot Sergeant White. The defendant also testified in mitigation at the sentencing hearing. He expressed remorse for his acts and stated that he never intended to kill anyone but himself.
The court found beyond a reasonable doubt that the defendant, a 46-year-old man, had murdered a peace officer in the course of the performance of his official duties, knowing that the murdered individual was a peace officer. Moreover, the court found that the defendant was not attempting to commit suicide at the time of the murder and that the defendant was not acting under the influence of extreme mental or emotional disturbance when the murder was committed. Finally, the court found that although the defendant did not have a significant history of prior criminal activity, that factor was diminished greatly, if not totally extinguished, by the defendant’s convictions for murder and arson, and was thus not sufficient to preclude the imposition of the death penalty.
The defendant raises many issues on this appeal which we will address. However, inasmuch as we find the death sentence to be inappropriate to this case, we need not address those issues raised concerning the constitutionality of the Illinois statute. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1.) Similar issues concerning the validity of our statute were raised and resolved in our recent opinion of People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531.
Defendant now contends that there were numerous trial errors which require reversal of his convictions. We note that several of these alleged errors were not objected to by the defendant at trial. We therefore consider they have been waived.
It is fundamental to our adversarial system that counsel object at trial to errors. (People v. Roberts (1979), 75 Ill. 2d 1, 10.) The rationale underlying this procedural requirement is based on the need for timely resolution of evidentiary questions at trial. (People v. Linus (1971), 48 Ill. 2d 349, 355.) Thus, we have generally held that the failure to object to the admission of evidence operates as a waiver of the right to consider the question on appeal. People v. Newbury (1972), 53 Ill. 2d 228, 238-39; People v. Scott (1972), 52 Ill. 2d 432, 439, cert. denied (1973), 410 U.S. 941, 35 L. Ed. 2d 607, 93 S. Ct. 1406; People v. McCorry (1972), 51 Ill. 2d 343, 349; People v. Linus (1971), 48 Ill. 2d 349, 355.
We recognize, however, that the waiver doctrine is not absolute. (See People v. Burson (1957), 11 Ill. 2d 360.) Our Rule 615(a) embodies the exception to the waiver rule. It provides, in part:
“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” 73 Ill. 2d R. 615(a).
A significant purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to the defendant. It therefore becomes relevant to examine the strength or weakness of the evidence against him; if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved. Thus, this court has held that where the evidence is closely balanced, a court of review may consider errors that have not been properly preserved for review. People v. Howell (1975), 60 Ill. 2d 117, 121; People v. Pickett (1973), 54 Ill. 2d 280, 283.
In addition to the protection of the defendant in cases where the evidence is closely balanced, the plain error rule also encompasses those errors of such magnitude that the commission thereof denies the accused a fair and impartial trial. People v. Manzella (1973), 56 Ill. 2d 187, 195.
If a timely objection is made at trial, either to improper interrogation, or to an improper remark by counsel to the jury, the court can, by sustaining the objection or instructing the jury to disregard the answer or remark, usually correct the error. (People v. Wilson (1972), 51 Ill. 2d 302, 308-09 (court cured prejudice that may have resulted from inadmissible evidence); People v. Baptist (1979), 76 Ill. 2d 19, 30 (court cured prejudicial effect of final argument).) There are situations, however, where the error is so damaging that such action by the trial judge cannot erase its prejudicial effect. See People v. Garrean (1963), 27 Ill. 2d 388, 391 (prejudicial effect of remarks in final argument not cured by sustaining objections to the remark and admonishing the jury to disregard them); People v. Polenik (1950), 407 Ill. 337, 347 (prejudicial effect of interrogation not cured by sustaining objection); People v. Gregory (1961), 22 Ill. 2d 601, 605 (prejudicial effect of inadmissible evidence not cured by the court’s sustaining the objection and giving a cautionary instruction).
The failure of counsel to object at trial waives those errors which the court can correct by sustaining an objection and admonishing the jury. Otherwise, counsel, by not giving the court the opportunity to prevent or correct error at trial, will gain the advantage of obtaining a reversal through his own failure to act, either intentionally or inadvertently. Whether or not the erroneous evidence or remarks were objected to at the trial, a court of review will grant relief if the trial error is so prejudicial that real justice has been denied or the verdict of the jury may have resulted from such error. (People v. Wright (1974), 56 Ill. 2d 523, 533-34; People v. Manzella (1973), 56 Ill. 2d 187, 200.) We thus construe the plain error rule to be a limited exception to the waiver doctrine. As we stated in the case of People v. Precup (1978), 73 Ill. 2d 7, 16:
“Rule 615(a) does not operate in the nature of a general saving clause preserving for review all errors affecting substantial rights whether or not they have been brought to the attention of the trial court.”
Applying the above, we find that several of defendant’s alleged errors relating to his conviction of the murder of Rosemary and of arson were unobjected to. They do not tend to negate his defense of insanity. The defendant does not deny that he killed his ex-wife or that he set fire to the house. The alleged errors could not therefore be so great that it would reasonably appear that the jurors had been influenced or prejudiced to the extent that they could not be fair or impartial. (See People v. Manzella (1973), 56 Ill. 2d 187, 200.) The alleged trial errors involve evidence of Rosemary’s lifestyle since her divorce, testimony about her facial expression after she was killed, testimony concerning her missing diamond ring, testimony that the assistant State’s Attorney told the officers there was probable cause to arrest the defendant for murder and arson, and the interrogation of the son of the defendant and Rosemary concerning an argument between his parents. These items were not properly objected to and therefore have been waived.
Defendant argues that the prosecutor, in suggesting that defendant made a prior inconsistent statement, substantially prejudiced the defendant before the jury. This contention is based on the following exchange during the cross-examination of defendant:
“[The prosecutor]. And he took it [the gun] out of your hand because you were still firing on the ground; isn’t that correct?
A. I don’t know.
Q. You don’t remember?
A. No, I don’t remember.
Q. As a matter of fact, when you first talked to a police officer in the Waukegan police department, you told them you didn’t remember what happened at Rosemary’s house, didn’t you?
A. Yes.
Q. As a matter of fact, you told them that you drew a blank on what happened at the bar, too, didn’t you?
A. No. I remember what happened in the bar.
Q. Didn’t you first tell them, ‘I’m sorry. I don’t know. I just went blank.’?
A. No, I don’t think I did.”
The defense counsel did not object to this interrogation. However, at the close of defendant’s case, defense counsel wanted to make an offer of proof as to a statement the defendant had made to the police officers following his arrest. The defense counsel stated, “It is consistent with his testimony — Carlson’s testimony on the stand concerning the homicide of Rosemary Carlson.” (Emphasis added.) The prosecutor objected, stating there had been no impeachment of the defendant by proof of prior inconsistent statements. The court stated he did not recall any and asked defense counsel what were the inconsistencies. Defense counsel replied, “There was no inconsistency that was brought out. There was the suggestion of inconsistencies.” The court denied the offer.
We first note that the offer was apparently to reestablish Carlson’s testimony concerning the homicide of Rosemary Carlson and not what he said concerning whether he remembered what happened in the tavern. Also there had been no proof by the prosecution that a prior inconsistent statement had, in fact, been made. From reading the transcript it is apparent that this is the reason the court denied the offer. Defendant contends that the exchange quoted above insinuates that he had made a prior statement inconsistent with his testimony and that this damaged his credibility. It is clear that the prosecutor was not attempting to prove that the defendant had made a prior statement to the officers which was inconsistent with his testimony. The defendant was being cross-examined concerning the shooting in the tavern and he had said that he didn’t know if the gun was taken from him because he was still firing it. This line of interrogation plainly does not come within the holding of People v. Nuccio (1969), 43 Ill. 2d 375, relied on by the defendant. In that case, during cross-examination, there were deliberate insinuations both as to prior statements and as to conduct that were very prejudicial. The State made no attempt later to call witnesses to prove that which had been implied during the cross-examination.
Defendant next contends that he was not proved sane beyond a reasonable doubt at the time he shot Rosemary and set fire to the house. The insanity defense (111. Rev. Stat. 1977, ch. 38, par. 6 — 2) was raised by the testimony of the defendant and by Dr. Leo Goldman, a psychiatrist. While the evidence presented was sufficient to raise the issue of the defendant’s sanity at the time of the commission of the offenses (Ill. Rev. Stat. 1977, ch. 38, pars. 3 — 2, 6 — 4), we find that the State thereafter satisfied its burden of proving sanity at the time of the offenses beyond a reasonable doubt (People v. Skeoch (1951), 408 Ill. 276). Although the defendant’s evidence was convincing, our review of the record discloses ample lay and expert testimony in support of the sanity finding. “The record presents a question of fact to be determined by the trial court [the factfinder]. Its decision will not be reversed unless the determination is so improbable or unsatisfactory as to raise a reasonable doubt as to defendant’s sanity.” People v. Ward (1975), 61 Ill. 2d 559, 568.
As to the State’s expert witness on the insanity issue, the defendant insists that the trial court erred when it admitted his opinion. According to the defendant, the opinion was based partially on police reports which contained inadmissible hearsay. A review of the record indicates that defendant objected to the State’s question which was put to the psychiatrist following his testimony that his opinion was based partly on an examination of the defendant and partially on police reports: “And in those reports were there observations made of the defendant by his family, friends, coworkers, and other individuals who saw the defendant at times close to the commission of the crime and the killing of Rosemary Carlson?” In a conference outside of the hearing of the jury, the judge, in effect, reserved his ruling due to the fact that he was unable, at that point in the proceeding, to ascertain what the psychiatric opinion was based on. When the trial resumed, the State asked the witness, “Doctor, what did you base your opinion on?” The doctor replied, “The opinion is principally based on my own findings and what the defendant told me.” No objection was then made by defense counsel. Furthermore, the defendant’s cross-examination of this witness did not disclose to what extent, if any, the witness based his opinion on anything in the police report. Inasmuch as the record does not support a finding that the State’s psychiatric witness based his opinion on inadmissible hearsay, we reject this argument.
Defendant’s next assignment of error concerns the propriety of the verdict forms which were given to the jury. The forms were tendered by the State during the instructions conference and were subsequently given to the jury without objection. For the arson charge and the charge of Rosemary’s murder, three possible verdicts were given to the jury: guilty, not guilty and not guilty by reason of insanity. The latter verdict form read:
“We, the jury, find the defendant, ROBERT K. CARLSON, SR., Not Guilty of the murder of Rosemary Carlson by reason of insanity and we further find that he has recovered from his condition of insanity.”
A similar form of verdict was given for the arson charge. It is undisputed that these verdict forms did not conform to the statute then in effect.
Prior to August 1, 1977, section 115 — 40) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 115 — 40)) required that if a verdict of not guilty by reason of insanity was returned the jury must also state in its verdict whether or not the defendant had recovered from his former condition of insanity. However, effective August 1, 1977, this last provision was deleted from the statute, which then provided only that in the event of a verdict of not guilty by reason of insanity a hearing should be held pursuant to the Mental Health Code to determine whether defendant is in need of mental treatment. (Ill. Rev. Stat. 1977, ch. 38, par. 115 — 40).) Thus, by the inclusion of the recovery phraseology, the jurors were presented with superfluous language. Defense counsel failed to tender verdict forms or to object to the giving of these forms. He also failed to specify this objection in his motion for a new trial. Such failure constitutes a waiver on review. See People v. Roberts (1979), 75 Ill. 2d 1; People v. Underwood (1978), 72 Ill. 2d 124.
The defendant asserts that the State failed to prove him guilty beyond a reasonable doubt of the murder of Sergeant Harry White. It was defendant’s position at trial, and he so testified, that when the officers apprehended him in the tavern, he attempted to kill himself and that Sergeant White was shot in the struggle for the gun. It is defendant’s position that the evidence only shows that he acted recklessly and was therefore chargeable with involuntary manslaughter, not murder. This, of course, was a question of fact for the jury to determine. An involuntary manslaughter instruction, as well as a murder instruction was given to the jury. In addition to the defendant’s testimony concerning the events in the tavern, there was the testimony of his companion at the bar and of the officers and others. The credibility of these witnesses and the weight to be given to their testimonies were properly determined by the jury. (People v. Stringer (1972), 52 Ill. 2d 564, 568.) We will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of the defendant’s guilt. (People v. Owens (1976), 65 Ill. 2d 83, 90.) We cannot say that the evidence in this case raises a reasonable doubt of the defendant’s guilt of the murder charge.
Defendant contends next that he was denied a fair trial when the court did not give a jury instruction defining “recklessly” in conjunction with the involuntary manslaughter instruction given with reference to the death of Sergeant Harry White. The jury was given the following instruction tendered by defense counsel:
“A person commits the crime of involuntary manslaughter who causes the death of another by acts which are performed recklessly and are likely to cause death or great bodily harm to another.”
This instruction is Illinois Pattern Jury Instruction, Criminal, No. 7.07 (1968) (hereinafter IPI). The defendant contends that the court should also have given IPI Criminal No. 5.01, which defines “recklessly,” which the committee note states should be given with instruction No. 7.07. Although the defendant tendered the above involuntary manslaughter instruction, he did not tender an instruction defining “recklessly.”
We view People v. Underwood (1978), 72 Ill. 2d 124, controlling on this point. In that case we stated the general rule with regard to criminal instructions: the burden of preparing jury instructions is primarily on the parties, not the trial court; generally, the trial court is under no obligation either to give instructions not requested by counsel or to rewrite instructions tendered by counsel, and no party may raise on appeal the failure to give an instruction unless he shall have tendered it. In Underwood we distinguished People v. Joyner (1972), 50 Ill. 2d 302, pointing out that in the latter case the court had failed to instruct on a lesser included offense — an offense of which the defendant could have been found guilty. In Underwood the failure was not to instruct on an essential element of the case but was only a failure to give a definitional instruction on the meaning of “reasonably believes” as used in the self-defense instruction which was given in that case. We held that the failure to sua sponte give the definitional instruction was not error. The same reasoning applies here. The failure of the court to sua sponte give an instruction defining “recklessly” was not a “substantial defect” in the instructions, and the failure of the defendant to tender the instruction waived his right to now complain on appeal.
Defendant next claims that he was denied his constitutional right to effective assistance of counsel. Specifically, defendant asserts that he was inadequately represented at trial by counsel on the following grounds: The public defender failed to present all the available evidence on the insanity defense; he failed to argue facts which would support a finding that defendant was more properly charged with involuntary manslaughter in the killing of Sergeant White (facts relating the number of shots fired, location of the officers and which shots could have struck White); the defense counsel did not present the jury instruction defining “recklessly” and did not tender the correct insanity jury verdict form; he failed to file a motion for a new trial which properly preserved the issue for review; and the public defender did not attack the validity of the Illinois death penalty statute (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1) at the trial.
In order to establish incompetency of appointed counsel, the defendant is required to establish actual incompetence of counsel, as reflected by the manner of carrying out his duties as a trial attorney which results in substantial prejudice without which the outcome would probably have been different. (People v. Georger (1972), 52 Ill. 2d 403, 409; People v. Dudley (1970), 46 Ill. 2d 305, 308.) We find that defendant has not satisfied this test. First, defense counsel fulfilled his duty of raising the issue of defendant’s sanity by putting Dr. Leo Goldman on the stand. The fact that he did not put additional lay or expert witnesses on the stand does not amount to incompetency. Nor can we say that the jury would not have found the defendant sane had more witnesses been presented. Counsel’s failure to present a detailed argument concerning the physical evidence did not amount to incompetence; such an argument would have been purely speculative. We have already discussed counsel’s failure to present the jury instruction defining “recklessly” and the proper insanity verdict form, and we determined, in our prior analysis, that neither omission resulted in substantial prejudice. Defendant was not substantially prejudiced by the general motion for a new trial filed by the public defender; he is protected from a denial of a fair trial by virtue of our Rule 615(a) (73 Ill. 2d 615(a)), which permits the court to consider plain error affecting substantial rights even where not brought to the attention of the trial court. Finally, counsel’s failure to argue the validity of the death sentence did not operate to substantially prejudice the defendant; for reasons expressed later in this opinion, we rule that the death penalty will not be imposed in this case.
Defendant also claims that he was denied a fair trial because the jury was chosen from a venire which excluded persons who said they could not, under any circumstances, vote to impose the death penalty. Such a venire, according to the defendant, was biased not only on the issue of sentencing, but also in favor of conviction.
Defendant concedes that this argument has been rejected by the Supreme Court (Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770) and by our court (People v. Wright (1974), 56 Ill. 2d 523; People v. Madison (1974), 56 Ill. 2d 476; People v. Brooks (1972), 51 Ill. 2d 156; People v. Clark (1972), 52 Ill. 2d 374). However, according to the defendant, an examination of three articles published subsequent to the Witherspoon decision containing additional research leads to a finding that such juries are “conviction-prone.” (Bronson, On the Conviction Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U. Colo. L. Rev. 1 (1970); Jurow, New Data on the Effect of a “Death Qualified” Jury on the Guilt Determination Process, 84 Harv. L. Rev. 567 (1971); Boehm, Mr. Prejudice, Miss Sympathy, and the Authoritarian Personality: An Application of Psychological Measuring Techniques to the Problem of Jury Bias, 1968 Wis. L. Rev. 734.) In its brief, the State assails the validity of the studies, asserting that they are dated and statistically inaccurate.
We do not here decide the validity of the studies. In the case before us, defendant does not dispute that he killed Rosemary, set fire to her house and caused the death of Sergeant Harry White. The only two issues for the jury to determine therefore were whether he was insane at the time he committed the arson and the murder of Rosemary and whether he would have been more properly charged with involuntary manslaughter for the death of Sergeant White. The articles cited by the defendant support his assertion that such a jury would be more prone to find a defendant guilty. Here, there is overwhelming evidence that he committed the homicides and set fire to the house. Defendant cites no authority for the proposition that a “conviction-prone” jury would be more likely to find a defendant sane or chargeable with a greater offense. We therefore decline to hold that a jury without scruples concerning capital punishment is biased in favor of a finding of sanity and a more severe charge.
Defendant raises many issues regarding the constitutionality of the death penalty statute both on its face and as applied. Since we find the death penalty to be inappropriate in this case, we need not address these arguments. For similar reasons, we also need not consider whether defendant’s waiver of a jury for sentencing was valid. We, however, uphold the sentences imposed for arson and the murder of Rosemary against defendant’s charge that such sentences are excessive. This court will not disturb a sentence imposed by the trial court unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose. In this State, the spirit and purpose of the law are upheld when a sentence reflects the seriousness of the offense and gives adequate consideration to the rehabilitative potential of the defendant. (People v. Heflin (1978), 71 Ill. 2d 525, 545; People v. Murphy (1978), 72 Ill. 2d 421, 439.) In considering the murder of Rosemary and the arson, the judge noted that the jury had rejected the defendant’s defense of insanity and noted his disbelief in this defense. He pointed out the seriousness of the offense and the evidence which established that these crimes had been planned in advance. The trial judge stated that he was considering the serious nature and the circumstances of these offenses and also the history and the character and condition of this defendant and concluded that lengthy sentences for these two offenses were required. We cannot say that the sentences constitute a great departure from the fundamental law and its spirit and purpose.
Finally, we consider defendant’s claim that the trial court erred in its imposition of the death penalty for the murder of Sergeant White. At the sentencing hearing, the court considered factors in aggravation and mitigation. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(c).) The court found, beyond a reasonable doubt, that the defendant was over 18 years of age at the time of the offense, that Harry White was a peace officer killed in the course of performing his official duties, and that defendant knew or should have known that Harry White was a peace officer. (See Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(b)(1).) In reviewing the evidence presented at the penalty hearing, the court noted that the defendant had no significant history of any prior criminal activity, which the statute states is a mitigating factor the court or jury may consider. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(c)(1).) However, the court stated:
“However, in this court’s considered opinion that mitigating factor is diminished greatly, if not totally extinguished, by the fact that a few hours before the murder of Harry White, the defendant had with malice aforethought brutally murdered his wife and committed arson of the house in which her body lay.”
It is apparent that because of these other offenses committed just a few hours before the murder of Sergeant White the court gave no consideration to the absence of any prior criminal activity as a mitigating factor. This we consider to be error. These three criminal offenses are all a part of one unfortunate and tragic event precipitated by the events leading up to the killing of Rosemary. It does violence to the intent of the legislature if the first two offenses are permitted to eliminate from consideration the mitigating effect of a prior life free of crime. The court also noted that another statutory mitigating factor may be applicable; that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance not sufficient to constitute a defense to the prosecution. The court discounted the testimony of the psychiatrist on this point, stating that it was based to a great degree on the doctor’s belief that the defendant was attempting to kill himself when he shot Sergeant White. The court stated that the evidence clearly showed that defendant was not attempting to commit suicide. We find that the court here again erred in determining that the defendant was not under extreme mental or emotional disturbances.
In addition to the psychiatrist, defendant’s personal physician testified that on September 10, 1975, the defendant had a serious heart attack and that his life hung in the balance. Again, on August 8, 1976, the defendant had a second heart attack. On June 15, 1977, he was again hospitalized for a cerebral concussion and multiple injuries, including a fracture of his wrist. He also underwent a laminectomy of which the doctor was aware but in which procedure he did not participate. The doctor testified that for a year or two prior to November 1977 the defendant had deteriorated physically and emotionally. Approximately a year before the murder the doctor had counseled both Rosemary and the defendant concerning marital difficulties. The doctor stated that the defendant’s two heart attacks had left him “partly disabled and really incapable of leading a complete and fulfilling life for a man in his early forties.” He stated that the defendant, during this time, was undergoing a slow grieving process related to the loss of the affection of his wife. The doctor had suggested that the defendant seek counseling. This testimony is supportive of the psychiatrist’s testimony that the defendant was extremely distraught when he killed Sergeant White. It should be noted that the psychiatrist had accepted the proposition that the defendant intended to commit suicide and not necessarily that he was attempting to commit suicide at the time he killed Sergeant White, which, as noted above, the trial court rejected.
The statute does not limit the consideration of the court or jury to only those mitigating factors set out in section 9 — 1(c) (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(c)). There is other evidence in the record, though not presented at the penalty hearing, worthy of consideration in mitigation. After the defendant had killed his wife and burned the house, he obviously was aware that his future was uncertain. He also realized that his son would be left without support. In spite of his own personal troubles at that time, the defendant was concerned about his son. He tried to contact his daughter so he could give her money for his son’s support. Since he was unable to reach her, he put $3,200 in an envelope and gave it to his companion at the tavern, who was instructed to give it to his daughter for his son’s use.
These mitigating circumstances do not bespeak a man with a malignant heart who must be permanently eliminated from society. The Supreme Court has held that, while individualizing sentencing determinations generally reflects simply enlightened policy, in capital cases the fundamental respect for humanity underlying the eighth amendment “requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” (Woodson v. North Carolina (1976), 428 U.S. 280, 304, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991.) See also Roberts v. Louisana (1976), 428 U.S. 325, 49 L. Ed. 2d 974, 96 S. Ct. 3001. See generally, Dix, Appellate Review of the Decision to Impose Death, 68 Geo. L.J. 97 (1979).
Focusing on the individual offender and the circumstances of the particular offense (and not on the fact that it was a peace officer who was killed), we see an individual with no past criminal record who would in all probability be leading a life acceptable to our society had not his unfortunate marital affair triggered this tragic sequence of events. We hold that the penalty of death should not be imposed upon the defendant.
True, as argued by the prosecutor at the sentencing hearing, this case involves the death of a peace officer. The legislature, by the statute, for obvious reasons, has specified the killing of a peace officer as an aggravating factor. Regardless of who may be the victim, the eighth amendment, as noted in Woodson v. North Carolina, requires that consideration be given to the character and record of the individual offender and to the circumstances of the particular offense.
The convictions and sentences of the defendant for the murder of Rosemary Carlson and for the arson are affirmed. The conviction of the defendant for the murder of Harry White is affirmed. The penalty of death for that conviction is set aside and the cause is remanded to the circuit court of Lake County with directions to impose a sentence on the defendant other than death.
Judgments affirmed; death sentence vacated; cause remanded, with directions.