dissenting:
It is my firm belief that the majority opinion is incorrect on several points. Paradoxically, the majority glosses over the numerous errors committed at trial, while setting aside findings made during the sentencing hearing which were strongly supported by properly admitted evidence. In my view, the errors committed during trial require reversal. Had the convictions been proper, however, as the majority decides, it is inappropriate to usurp the trial court’s sentencing function and substitute the majority’s weighing process for the trial court’s.
The first issue about which I disagree with the majority opinion relates to the evidence and argument concerning the missing diamond ring. The defendant has argued that the prosecutor’s comments that the defendant took the ring unfairly prejudiced the defendant. I agree.
Officer Delwin Hanson of the Waukegan Police Department testified at trial that he searched the house on November 14, 1977, the day after the offenses involved here, to look for evidence. He testified that after he thoroughly searched the house, he left, while James Hyde, the decedent’s son by a prior marriage, stayed behind. Officer Hanson did not testify that he observed the purse (which the defendant’s son Eric testified contained the ring) on November 14, 1977. Officer Hanson did say that, when he left, Hyde was searching through a dresser in the bedroom looking for items of value which he intended to take for himself and other members of the family. The purse was in that same bedroom. The officer further testified that he did not enter the house again for 4!4 months, but that he did drive past it occasionally, and he observed that the windows, but not the doors, were boarded up. When Officer Hanson did reenter the house, it was on April 3, 1978. At that time, he discovered the decedent’s purse in the bedroom amidst the soot and ashes of the partially burned house. He testified that the purse was on the floor, that it had been opened and turned over, and that some of its contents were scattered on the floor. The officer said that he looked for the diamond engagement ring specifically but that he was unable to find it. In closing argument, the prosecutor theorized that the defendant returned to the house after shooting Rosemary so that he could take the ring and set fire to the house. Specifically, the prosecutor stated that the defendant drove to a vacant lot a short distance from the house to calm down. The prosecutor continued:
“He sits there and he thinks about what’s going on here. I’ve got to calm myself down. He says, ‘Okay. I’ve completed one part of my plan. I simply have to go back and burn down the house. Besides that, she has that ring that I didn’t get. She has the diamond ring.’
And you will recall the defendant is a little concerned about rings on Sunday because he told me, when I asked him whether or not he insisted that she put on her emerald ring that he had given her that morning, ‘Yes, she did.’ Indeed, he insisted that she put on that ring. The ring was bothering him.
* * *
He gets the ring, sets the fire, and leaves, very nice and calm, and saying hello to the children.”
It is clear the prosecutor was attempting to demonstrate that the defendant’s acts were deliberate, calculated and rational. In short, despite the majority’s protestations to the contrary (79 Ill. 2d at 578), Officer Hanson’s testimony and the prosecutor’s comments were explicitly designed by the prosecution to negate the defense of insanity.
Assumptions and statements of fact not based upon evidence in the case may not be properly argued to the jury and, under circumstances such as the present, are prejudicial to the accused. (People v. Beier (1963), 29 Ill. 2d 511, 517.) In Beier the prosecutor argued that because no fingerprints were found on the gun which had been used to murder the defendant’s husband, the defendant wife must have wiped them off. It was concluded by this court that the comments by the prosecutor deprived the defendant of a fair trial and the cause was remanded to the circuit court for a new trial.
People v. Newbury (1972), 53 Ill. 2d 228, also involved a murder conviction. The defendant caused the death by asphyxiation of the decedent, to whom he was engaged to be married. As in the instant case, the defendant did not deny committing the act; he maintained that he was insane at the time of its commission. Error was assigned on several grounds, including the admission of a torn photograph of the defendant found in the decedent’s apartment, which the State argued tended to show that the decedent and the defendant had quarreled. It was held that the photograph should have been excluded because its relevance depended upon unproved assumptions that the decedent had torn it and that she had torn it deliberately and recently. (People v. Newbury (1972), 53 Ill. 2d 228, 240.) It is noteworthy herein that the decedent’s 'son, James Hyde, was not called as a witness by either party to ascertain whether he might have taken the ring. Moreover, the defendant was never asked whether he took the ring, nor was the ring found in his possession, actual or constructive, when he was arrested. There was therefore no basis in the evidence to support the assumption that the defendant took the ring, yet the prosecution insistently argued that the defendant had taken it.
It is impossible to determine the exact effect that improper evidence has upon the minds of the jurors. Every defendant, be he a sinner or a saint, has the right to expect that his fate will be decided with reference only to the circumstances of the crime with which he is charged. (See People v. Donaldson (1956), 8 Ill. 2d 510, 519.) While it is true, as the majority states, that no objection was raised to the prosecutor’s comments concerning the ring, it has repeatedly been held that failure to object to improper argument will not constitute a waiver when a prosecutor’s argument is so seriously prejudicial that it prevents the defendant from receiving a fair trial. (People v. Sullivan (1978), 72 Ill. 2d 36, 42; People v. Romero (1967), 36 Ill. 2d 315, 320; People v. Morgan (1960), 20 Ill. 2d 437, 441; People v. Fort (1958), 14 Ill. 2d 491, 500-01; People v. Moore (1956), 9 Ill. 2d 224, 231-32.) In People v. Sullivan we held that the prosecutor’s disclosures of the defendant’s alleged accomplices’ guilty pleas in opening statement and during the trial, and the prosecutor’s reliance upon the pleas during closing argument to urge the jury to find the defendant guilty, was a single continuous error which deprived the defendant of a fair and impartial trial. The fact no objection was made to the prosecutor’s disclosures did not prevent our taking notice of the error. I think the same result should have been reached here because the contrived interpretation of Officer Hanson’s testimony made by the prosecutor in closing argument seriously prejudiced the defendant and deprived him of a fair trial.
A second objection I have with the majority opinion is its treatment of Eric Carlson’s testimony. The defendant has asserted on appeal that the State committed prejudicial error on direct examination when it asked the defendant’s son Eric questions concerning an argument between the defendant and Rosemary. The following exchange took place:
“Q. [The Prosecution] Do you recall the conversation between your father and your mother where he told her or told you that he had bought two gas cans and had them filled up with gasoline the day before?
A. [Eric] No.
Q. Did he tell your mother that he had bought a gun on Friday before that Sunday?
A. No.
Q. Did he tell her that it was right in the car?
A. No.”
As may be seen, Eric’s testimony was that no argument ever took place. After the foregoing colloquy, the court indicated that an objection might be made by defense counsel. The court then asked the prosecutor outside the hearing of the jury whether the State intended to show that any such argument did occur. The prosecutor said no. There is no mention in the record that the court sustained an objection; however, the court did state that the questions were improper, because Eric was the State’s witness and the prosecution should know how he would answer the questions. I think the prosecutor’s questions, designed to create the impression that the defendant had deliberately planned the murder of Rosemary and the arson, constitute reversible error. The implication is apparent that the State was attempting to show that the defendant had threatened Rosemary, when the testimony of the defendant’s son is that no such conversation took place.
In People v. Burbank (1972), 53 Ill. 2d 261, 269-71, this court, held that where defense counsel asks a police officer on cross-examination whether the officer made threats to the defendant, and the officer denies having done so, some proof had to be offered to show that the threats were made. Otherwise, the interrogation merely creates an innuendo unsupported by evidence. (People v. Burbank (1972), 53 Ill. 2d 261, 271.) This manner of interrogation whereby counsel makes insinuations not supported by proof is improper whether done by the prosecution, as here (see People v. Nuccio (1969), 43 Ill. 2d 375), or by defense counsel, as in Burbank.
I cannot in any way agree with the majority’s assertion that the prosecution’s comments concerning the missing diamond ring, and the prosecutor’s direct examination of Eric which implied threats and deliberation on the part of the defendant, are unrelated to the defense of insanity. On the contrary, the clear thrust of the prosecutor’s conduct in both instances was to show that the defendant was acting deliberately and therefore sanely when he took the life of his former wife and set fire to the house. We have recently expressed our awareness of the growing concern over improper prosecutorial arguments (People v. Baptist (1979), 76 Ill. 2d 19, 28), yet the majority is willing to characterize the seriously prejudicial and improper argument and questions in this case as harmless. The errors at trial were not harmless; they were a distortion of the defendant’s defense of insanity and therefore could have influenced the outcome in this case. (People v. Manzella (1973), 56 Ill. 2d 187, 200; People v. Murphy (1916), 276 Ill. 304, 324.) The fact that the prosecution impliedly referred to imaginary threats and actually misstated the evidence concerning the missing diamond ring could easily have affected the jury’s determination of whether the defendant was acting deliberately and sanely or not at the time of Rosemary’s killing and the arson. Also, it is very plausible that if the jury believed that the defendant had stolen the ring and had plotted the deliberate murder of his former wife and the arson of her house, he was also capable of deliberately lying at trial concerning whether he had attempted suicide or had acted intentionally when he killed Sergeant White. Thus, the prosecutor’s attempt to overcome the defendant’s defense of insanity by improperly making unfounded assertions should not be permitted, because it deprived the defendant of a fair trial. (People v. Weathers (1975), 62 Ill. 2d 114, 120-21.) Moreover, the majority’s refusal even to consider these errors and its affirmance of the convictions not only condones the prosecution’s improper conduct, it invites further prosecutorial overreaching.
The majority’s second reason for not noticing the error — that defense counsel should not “gain the advantage of obtaining a reversal through his own failure to act, either intentionally or inadvertently” — is hardly persuasive. (79 Ill. 2d at 577.) We are not here concerned with defense counsel’s win-loss record, we are concerned that the defendant receive a fair trial and that the integrity of the judicial process not be deteriorated. (See People v. Romero (1967), 36 Ill. 2d 315, 320.) The effect of the majority’s reasoning is to acknowledge that the defendant was denied a fair trial but to refuse to remedy the situation because counsel was less than effective in his representation. To do so punishes the defendant for counsel’s misfeasance.
I am compelled to observe at this point that this case is precisely the type of case where Rule 615(a) (73 Ill. 2d R. 615(a)) should be invoked to notice the plain errors which occurred at trial. This is particularly true in this case because it reached this court on direct appeal due to the imposition of the death sentence, and this court has consistently held that a higher standard of review is applicable in capital cases. While normally in criminal cases this court will affirm a conviction if no substantially prejudicial error occurs, (People v. Nilsson (1970), 44 Ill. 2d 244, 248, cert. denied (1970), 398 U.S. 954, 26 L. Ed. 2d 296, 90 S. Ct. 1881; People v. Stahl (1962), 26 Ill. 2d 403, 406), where the extreme penalty for murder is fixed, even if proof of guilt is clear, there must be no prejudicial error committed during the trial if the reviewing court is to be justified in affirming the judgment (People v. Myers (1966), 35 Ill. 2d 311, 335; People v. Bernette (1964), 30 Ill. 2d 359, 368; People v. Oden (1960), 20 Ill. 2d 470, 485; People v. Dukes (1957), 12 Ill. 2d 334, 339; People v. Donaldson (1956), 8 Ill. 2d 510, 519; People v. Winchester (1933), 352 Ill. 237, 248; People v. Arthur (1924), 314 Ill. 296, 315). While several cases hold that the judgment must be reversed because the jury not only determined the question of guilt, but also fixed the punishment (see, e.g., People v. Oden (1960), 20 Ill. 2d 470), I think the same result should prevail when, as here, the jury determined guilt and the court fixed the penalty. The reason for reversal for a new trial is the same in either instance: it is impossible to determine the exact effect that improper evidence has upon the minds of the jurors. (People v. Donaldson (1956), 8 Ill. 2d 510, 519.) People v. Dukes (1957), 12 Ill. 2d 334, is quite analogous to the instant case. There the State introduced evidence that the murder victim lived with his wife and four children. In closing argument, the prosecution, on more than one occasion extolled the virtues of the deceased. After stating that admission of evidence that the deceased left a spouse and family is condemned and that a “prosecutor should never inject into his argument evidence not introduced at the trial” (12 Ill. 2d 334, 341), the court concluded it was compelled to reverse the judgment and order a new trial due to the admission of incompetent evidence and the inflammatory and prejudicial argument of the prosecutor. Furthermore, the court made the following telling statement:
“From the evidence in this case, we conclude that the jury was justified in returning a verdict of guilty and that the death penalty may well have been warranted. But our review cannot end with that observation. We must determine whether prejudicial errors were committed during the trial which deprived the defendant of those constitutional safeguards which, under our laws, are afforded to the guilty as well as the innocent. Where the charge is murder, a jury has wide discretion in fixing the punishment. (Ill. Rev. Stat. 1955, chap. 38, pars. 360 and 801.) And when, in the exercise of that discretion it inflicts the death penalty, this court cannot affirm that judgment even though proof of guilt is clear, if prejudicial error occurred in the trial. People v. Crump, 5 Ill. 2d 251; People v. Jackymiak, 381 Ill. 528; People v. Winchester, 352 Ill. 237; People v. King, 276 Ill. 138.” People v. Dukes (1957), 12 Ill. 2d 334, 339-40.
I emphasize that the standard that prejudicial error requires reversal should have been applied in the instant case even though the majority has vacated the death sentence. That is because, if the majprity had applied the appropriate standard to the errors which occurred at trial, it would reverse for a new trial, without ever reaching the issue of the propriety of the sentence of death. Thus, I think the court should have invoked Rule 615(a) to notice the plain errors and, since the errors were prejudicial, should have reversed the trial court and ordered a new trial.
I must also take issue with the majority’s resolution of the question of ineffective assistance of counsel. Specifically, the majority states that the defendant was not prejudiced by the very general motion for a new trial filed by the public defender. The motion requested a new trial based on the following grounds:
“1. The Defendant was not proven guilty beyond a reasonable doubt.
2. The Defendant did not receive a fair trial.
3. The Defendant was denied due process of law.
4. The Defendant was denied equal protection of the laws.”
Suffice it to say that the motion should have been more specific in identifying the various errors which occurred at trial. Additionally, in my opinion, defense counsel’s entire representation was uneven and could have been considerably more vigorous in objecting to the prosecution’s unfounded theories and assumptions. It is primarily because counsel did not object throughout the trial that this court has concluded the various trial errors have been waived. (79 Ill. 2d at 575-78.) Thus, if counsel had objected, thereby bringing the seriously prejudicial errors to the attention of the trial court, as well as preserving the questions for review, the outcome of this case might well be different.
Moreover, I must point out that the majority, in deciding that the defendant was afforded the effective assistance of counsel, makes the following statement:
“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.” (79 Ill. 2d at 585.)
It is a mystery to me how the majority can seriously assert that the defendant was not denied the effective assistance of counsel because of the protection afforded by Rule 615(a). Shortly before, the majority had concluded that Rule 615(a) did not apply to this case. How, I wonder, may the majority contend in one breath that Rule 615(a) should not be used to notice plain error in this case while in the next breath attempt to set up the rule as the reason the defendant received a fair trial? Such an argument makes clear that, for this defendant, a fair trial is more of an illusion than a reality.
My final cause for disagreement with the majority opinion concerns the majority’s decision to vacate the death sentence. This court has repeatedly held that it will not disturb a sentence imposed by the trial court unless there has been an abuse of discretion. (People v. Lykins (1979), 77 Ill. 2d 35, 40; People v. Perruquet (1977), 68 Ill. 2d 149, 153; People v. Bonner (1967), 37 Ill. 2d 553, 563.) In People v. Lykins the defendant was convicted of conspiracy, armed robbery and murder. The trial court imposed a sentence of 70 to 150 years. We said there:
“Though Supreme Court Rule 615(b)(4) (58 Ill. 2d R. 615(b)(4)) allows the reduction of sentences by a reviewing court, ‘It is not our function to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we might have imposed a different sentence had that function been delegated to us.’ (People v. Waud (1977), 69 Ill. 2d 588, 596.) ***.
***. The trial judge is authorized to consider not only the defendant’s character but also the ‘nature and circumstances of the offense’ in imposing a sentence. (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 8—1(c)(1).) Admittedly, the sentence is severe; however, it is justified by the brutal nature of the crime.” (People v. Lykins (1979), 77 Ill. 2d 35, 40.)
Thus, where the trial court has scrupulously attempted to comply with the guidelines laid down in the statute for imposing the death penalty, I think it is inappropriate to disregard the lower court’s carefully considered and well-supported decision. Yet that is precisely what the majority has done, with virtually no justification whatever for doing so.
The majority opinion states: “It is apparent that because of these other offenses [the murder of Rosemary and the arson] 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.” (79 Ill. 2d at 588.) The majority’s statement is incorrect. The trial court did specifically find that the defendant had no prior criminal history and did expressly consider that factor. The trial court stated:
“With reference to mitigating factors, number one, which is that the defendant had no prior criminal activities, this Court has already stated that the defendant had no significant history of any prior criminal activity.”
The trial court went on to say, as quoted by the majority, that that mitigating factor was “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.” Hence I am unable to discern the majority’s reason for concluding that the trial court did not consider the absence of a prior criminal history as a mitigating factor. It is clear that the trial court was properly engaged in the weighing process required by the United States Supreme Court in Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, and its progeny. Therefore the majority was without justification in disturbing the trial court’s findings.
The majority continues: “It does violence to the intent of the legislature if the first two offenses [the murder of Rosemary and the arson] are permitted to eliminate from consideration the mitigating effect of a prior life free of crime.” (79 Ill. 2d at 588.) The majority does not offer any reason for this conclusion, and I am at a serious loss to see one. In my opinion, the trial court balanced the defendant’s lack of a criminal history against the brutal murder of his former wife and the arson of her house. The trial court is permitted to conduct such a process under the express legislative authority of section 9 — 1(c) (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(c)), which provides that aggravating factors may include nonstatutory as well as statutory factors. Thus, the court was well within the purview of the murder statute when it weighed the defendant’s lack of a criminal history with the non-statutory aggravating factor that he had committed two other offenses the same day he killed Sergeant White. No violence was done to the intent of the legislature by the trial court.
Furthermore, the majority has mistakenly substituted its judgment as to the existence of a second mitigating factor for the amply supported finding by the trial court that it did not exist. The majority states: “We find that the court here again erred in determining that the defendant was not under extreme mental or emotional disturbances.” (79 Ill. 2d at 589.) I do not think the evidence supports the majority’s conclusion that the trial court was in error. It is true, as the majority points out, that the defendant was undergoing a gradual physical and emotional deterioration for some years prior to November 13, 1977. It is also true that a psychiatrist, Dr. Goldman, testified at the sentencing hearing that he believed the defendant to be under the influence of an extreme mental or emotional disturbance on November 13, 1977. While there was evidence to support both sides, I think the statement in the recent case of People v. Brownell (1980), 79 Ill. 2d 508, 540, on this precise point is of some guidance:
[W] e should not lightly overturn the findings of the trial court, particularly when they are amply supported by the record. (See, e.g., People v. Myers (1966), 35 Ill. 2d 311, 340-41.) Therefore the finding of the trial court that the defendant did not commit murder while under the influence of an extreme mental or emotional disturbance will be sustained.”
I think the majority places undue emphasis on the gradual deterioration of the defendant’s physical and emotional condition. That the defendant had serious problems is beyond dispute; but that these problems were sufficient to be “extreme” and thus serve to obviate the fact that the defendant shot and killed a peace officer in the course of his duties is a dubious contention. Moreover, the notion that the defendant might have been contemplating committing suicide some time in the future, in part because he had killed Rosemary and set fire to the house, does not meet the statutory requirement that the defendant be acting under the influence of an extreme mental or emotional disturbance when the murder was committed. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(c)(2).) Thus the trial court was correct in discounting this factor since the jury determined at trial that the defendant was not attempting to commit suicide when he shot Sergeant White three times, causing his death. The majority is again incorrect in replacing its findings for the well-supported and considered findings of the trial court.
Furthermore, I find it incongruous that the majority can refuse to consider errors at trial which unfairly confound the defendant’s defense of insanity, yet, with little evidence to support it, draw the conclusion that the defendant was, when he killed Sergeant White, “under the influence of extreme mental or emotional disturbance, although not such as to constitute a defense to prosecution [such as, insanity] ” (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(c)(2).) In other words the majority has found the defendant was acting under an extreme mental disturbance when he killed Sergeant White, yet the majority refuses to consider errors which reflect on whether he may have been under a more severe disturbance only a few hours before. I would think our first order of business would be to ensure the defendant a fair trial before we invade the province of the trial court as to sentencing.
Finally, the majority considers several nonstatutory mitigating factors which it concludes prove that the defendant does not have a “malignant heart.” (79 Ill. 2d at 590.) Again, the majority has exceeded the bounds of appellate review authorized under the statute (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(i)) and interpreted by People v. Brownell (1980), 79 Ill. 2d 508, and is unnecessarily substituting its judgment for the trial court’s. The majority is certainly correct to state that the particularized circumstances of this defendant and this offense are to be considered in imposing sentence. (Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909; Proffitt v. Florida (1976), 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960; Jurek v. Texas (1976), 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950; Woodson v. North Carolina (1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978.) Still, I do not think the majority is justified in concluding that because the defendant is not a person with a “malignant heart,” the trial court erred in imposing the death penalty. First of all, I do not know from what source the majority has obtained the perspective that the defendant lacks a malignant heart. Secondly, even if it were true, I do not see its relevance. Thirdly, when the majority’s intangible and vague standard of a malignant heart is weighed against the statutory aggravating factor, proved beyond a reasonable doubt, that the defendant killed a peace officer while the officer was in the performance of his official duties, the arbitrariness of the majority’s standard becomes readily apparent.
In sum, I would reverse the trial court on account of the multiple and seriously prejudicial errors which occurred at trial. If however, as the majority decides, the trial was error free or the errors did not rise to the level of plain error (see 73 Ill. 2d R. 615(a)), then I think the trial court’s sentence should stand, because it was amply supported by the evidence adduced at the sentencing hearing. I do not think the trial court’s findings should be arbitrarily swept aside and replaced by the majority’s findings, absent a showing of an abuse of discretion, which the majority has not found.
MR. JUSTICE MORAN joins in this dissent.