concurring in part and dissenting in part:
I dissent from the court’s decision to uphold the death sentence imposed in this case because the sentencing process was flawed by evidence elicited by the State which improperly appealed to the emotions of the jurors.
Firmly entrenched in the jurisprudence of this court is the proposition that a criminal defendant’s guilt and the punishment to be exacted must be determined by a jury “uninfluenced by bias or prejudice.” (People v. Bernette (1964), 30 Ill. 2d 359, 371; People v. Holman (1984), 103 Ill. 2d 133; People v. Ramirez (1983), 98 Ill. 2d 439; People v. Gill (1973), 54 Ill. 2d 357; Filippo v. People (1906), 224 Ill. 212.) Applying this rule, the court has repeatedly reversed convictions or vacated sentences where the prosecution, either by adducing improper evidence or by making emotional appeals in argument, has drawn the jury’s attention to the personal characteristics and relationships of the victim. (People v. Holman (1984), 103 Ill. 2d 133; People v. Ramirez (1983), 98 Ill. 2d 439; People v. Davis (1983), 97 Ill. 2d 1; People v. Bernette (1964), 30 Ill. 2d 359; People v. Gregory (1961), 22 Ill. 2d 601; People v. Dukes (1957), 12 Ill. 2d 334; Filippo v. People (1906), 224 Ill. 212.) The court’s action in these cases was grounded in the recognition that “ ‘such evidence has no relationship to the guilt or innocence of the accused or the punishment to be inflicted upon him’ ***” (People v. Holman (1984), 103 Ill. 2d 133, 166, quoting People v. Bernette (1964), 30 Ill. 2d 359, 371), but serves only to “arouse in [the jurors] anger, hate and passion” against him (People v. Dukes (1957), 12 Ill. 2d 334, 340).
Of course, not every mention of the personal characteristics of the victim triggers a response by this court; where such testimony is “elicited incidentally” no prejudice arises. (People v. Ramirez (1983), 98 Ill. 2d 439, 453.) However, when testimony on the personal situation of the victim is “presented in such a way as to give the jury to understand that it was *** material,” such evidence is highly prejudicial. (Filippo v. People (1906), 224 Ill. 212, 217; People v. Dukes (1957), 12 Ill. 2d 334, 340.) This court has frequently inferred from the nature of the evidence that the prosecution intended only to inflame the jury. See, e.g., People v. Ramirez (1983), 98 Ill. 2d 439; Filippo v. People (1906), 224 Ill. 212.
Here the State called two witnesses during the second stage of the sentencing hearing. The first, the sister of the victim Winker, testified to the victim’s age, education, the fact that Winker was engaged to the victim Paule, the wedding date, Winker’s lack of a criminal record, and her interest in reading and Sunday school. The second witness was the grandfather of the other victim. He testified to Paule’s age, employment, education, the fact that he was to be married to Winker, and the fact' that the victim had never been in trouble.
The majority apparently believes that the “more liberal position” on evidence at the sentencing hearing justifies the introduction of this evidence. (109 Ill. 2d at 506.) I do not agree. No matter how broad the relevance standard applied, the testimony here cannot pass muster. The background of the victims and their relationship was singularly irrelevant to any issue at the sentencing hearing; the only issue at the second stage of the hearing is the existence of factors in mitigation and aggravation. The fact that the victims were youthful, law-abiding members of the community and were to be married could have no relevance to that issue unless the court is willing to take the position that murder is more heinous when perpetrated against an upstanding member of the community, and thus the character of the victim is a factor in aggravation. Such a principle, however, would offend our most basic notions of equality and justice.
The obvious purpose for which the prosecution called these witnesses was to play upon the jurors’ emotions in viewing the tragic deaths of the young victims. There can be no claim here that the testimony was “incidental,” inasmuch as the victims’ family members were the only witnesses called at the second stage and their testimony related to nothing but the victims’ characters. The jury could not have helped but believe that the victims’ characters were material to deciding whether the death penalty should be imposed.
Despite the highly prejudicial nature of the evidence, the majority refuses to consider the error because it was not objected to at trial. As the majority sees it, this testimony did not constitute plain error “affecting substantial rights.” (See 87 Ill. 2d R. 615(a).) In my view, there can be few,' if any, rights more substantial than the right of one in jeopardy of his life to a sentencing jury uninfluenced by partiality and prejudice. Moreover, the majority’s citation of two cases refusing to employ the plain-error rule in this context, while accurate, is also selective. This court has also twice held recently that the propriety of evidence or argument at the sentencing hearing relating to the victim’s family can be considered under the plain-error rule. (People v. Holman (1984), 103 Ill. 2d 133, 176-77; People v. Davis (1983), 97 Ill. 2d 1, 26-27; see also People v. Bernette (1964), 30 Ill. 2d 359, 372; People v. Szabo (1983), 94 Ill. 2d 327, 354-55, 363-65.) In Holman, the court explained that this type of error should be considered notwithstanding the defendant’s failure to object “because of the qualitative difference between death and other forms of punishment and the ‘ “high standard of procedural accuracy [that] is required in determining whether or not [the death] penalty will be imposed.” ' ” (People v. Holman (1984), 103 Ill. 2d 133, 177, quoting People v. Davis (1983), 97 Ill. 2d 1, 26-27, and People v. Walker (1982), 91 Ill. 2d 502, 517.) Similarly, in People v. Davis (1983), 97 Ill. 2d 1, 27, the court considered the argument despite the fact that no objection was made because the possibility that the jury might have been influenced at the first stage of the sentencing hearing by prejudicial evidence “should not be tolerated.” And in the watershed case of Bernette, this court overturned a conviction and death sentence, even without objection to the evidence, on the ground that “the irrelevancy and highly prejudicial nature of such evidence is so well established, that it was the duty of the court in a murder case to have refused it on its own motion.” 30 Ill. 2d 359, 372.
I would note that, apart from the consequence that prejudicial error is overlooked, the uneven application of the plain-error rule in circumstances virtually indistinguishable gives our decisions an unpredictable quality which should not be tolerated in a system of equal justice, especially in view of the fact that we are considering the imposition of a death sentence. In addition, it encourages prosecutors to attempt to get by with what they can when they think defense counsel may overlook it. It appears to me that we have been giving inconsistent signals to prosecutors on the propriety of tactics such as those used during the sentencing hearing here and that this would be a good case to try to clarify the standards to be used.
Finally, for the reasons set forth in my separate opinions in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), in People v. Silagy (1984), 101 Ill. 2d 147, 184 (Simon, J., concurring in part and dissenting in part), and in People v. Albanese (1984), 104 Ill. 2d 504, 549 (Simon, J., concurring in part and dissenting in part), I believe that the Illinois death penalty statute is unconstitutional and that therefore no sentence imposed under that statute can stand. For these reasons, I think the sentence of death imposed on defendant should be vacated.