dissenting:
My first departure from the majority opinion concerns an irregularity in our hearing this direct appeal. Rule 651 (87 Ill. 2d R. 651(a)) directs that appeals from “a final judgment of the circuit court” move to the appellate court. The majority substitutes for this unambiguous command the requirements found in Rule 603 which deal with appeals from the imposition of the death penalty. (87 Ill. 2d R. 603.) Rule 603, though, which is constitutionally mandated (Ill. Const. 1970, art. VI, sec. 4), applies only to appeals from decisions which initially impose the death sentence by requiring that the imposition of a death sentence must be directly appealed to this court. A post-conviction hearing, on the other hand, only reviews a final judgment which may or may not have imposed the death sentence; the post-conviction hearing does not of, itself, impose a death sentence. The majority’s reliance on Rule 603 is misplaced; Rule 651 applies to appeals from judgments denying post-conviction relief. I would require appeals from post-conviction hearings to be heard by the appellate court before any appeal could be heard by this court. The ad hoe application of Rule 651 in which this court has engaged by exempting appeals from post-conviction judgments in cases where a death sentence was previously imposed constitutes a violation of the equal protection clauses of the United States and Illinois constitutions (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, sec. 2) by treating defendants in such cases differently than all other defendants without any constitutional sanction for the difference in treatment.
A fear is expressed in the majority opinion that uniform results in death cases would not result without direct appeal to this court. (105 Ill. 2d at 99.) A similar view is expressed in the majority opinion in People v. Lewis (1984), 105 Ill. 2d 226, 231-32. This concern seems no greater in this area of the law than in any other. Without a constitutional or legislative directive, I see no reason to resolve conflicts in our circuit or appellate courts where death sentences are being reviewed any differently than we do in any other area of the law. Uniformity could be easily achieved by accepting for review all post-conviction appellate court decisions of cases where death sentences had been imposed at trial. The advantage to this procedure is obvious. In this difficult and painful area, the more minds reviewing the procedures employed by our circuit courts, the more certain we can be about the correctness, fairness and justice of decisions to impose this most final of penalties.
Even if this court had jurisdiction to hear this appeal, I would not join the majority because the systematic exclusion of black jurors by the prosecutor through the use of peremptory challenges denied the defendant his constitutional right to an impartial jury. For the reasons set forth in my dissenting opinions in People v. Payne (1983), 99 Ill. 2d 135, 140, and People v. Moore (1984), 101 Ill. 2d 549 (appeal denied), I would reverse the circuit court’s decision to deny the defendant’s petition for post-conviction relief. I note that another State has, since the decisions in Payne and Moore, departed from the approach taken by the Supreme Court in Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824. The Florida Supreme Court in State v. Neil (Fla. 1984), 457 So. 2d 481, interpreting its own constitutional provisions which are similar to ours, determined that the use of peremptory challenges to excise a distinct racial group from a jury was a denial of the defendant’s right to an impartial jury. Florida joins Massachusetts (Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert, denied (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170) and California (People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890) by interpreting its own constitution to deny this unconstitutional practice. (Cf. State v. Crespin (1980), 94 N.M. 486, 612 P.2d 716 (holding defendant presented insufficient facts to require a new trial following a Wheeler and Soares approach).) This strengthens my belief that this court should reevaluate its position in light of this development and the continued unease expressed by members of the Supreme Court over the validity of Swain. See Thompson v. United States (1984), 469 U.S__,_, 83 L. Ed. 2d 369, 369, 105 S. Ct. 443, 444 (Brennan, J., joined by Marshall, J., dissenting from denial of certiorari).
The majority also fails to properly resolve the defendant’s claim that his constitutional rights were violated by the eavesdropping of Officer Dwyer. For the reasons set forth in Justice Clark’s dissenting opinion as well as mine (People v. Gaines (1981), 88 Ill. 2d 342, 387, 391) in the defendant’s original appeal, I believe the majority’s decision in this case is incorrect. Moreover, this appeal presents a new aspect, in that the defendant’s mother, Rebecca Gaines, filed an affidavit stating that she never consented to the eavesdropping. Therefore, the present case should not be controlled by the resolution of the eavesdropping issue in the original appeal.
Finally, for the reasons set forth in my separate opinions in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), People v. Silagy (1984), 101 Ill. 2d 147, 184 (Simon, J., concurring in part and dissenting in part), and People v. Albanese (1984), 104 Ill. 2d 504 (Simon, J., concurring in part and dissenting in part), I believe that the Illinois death penalty statute is unconstitutional, and, therefore, a death sentence should not be imposed on this defendant.