dissenting:
The majority holds that the rule fashioned in People v. Zehr (1984), 103 Ill. 2d 472, requiring trial judges to probe potential juror biases, including biases against the presumption of innocence, does not apply to this case because the voir dire here occurred before this court’s opinion in Zehr was filed. To reach this result, the court invokes People v. Britz (1986), 112 Ill. 2d 314, which contained language suggesting that the Zehr rule would not be retroactive. In my view, Britz was fundamentally misguided when it was rendered, and subsequent developments in the law of retroactivity have fully illuminated the error this court fell into when it gave Zehr only prospective application.
The court’s language in Britz concerning the retroactivity of the Zehr rule constituted no more than an advisory opinion; as the court recognized there, Britz himself would receive the benefit of the Zehr rule since we reversed his conviction on other grounds and remanded for a new trial. Indeed, the discussion of retroactivity in Britz was doubly unnecessary because the voir dire of which he complained occurred after the appellate court opinion in People v. Zehr (1982), 110 Ill. App. 3d 458. The appellate court in Zehr had ruled, as we later agreed, that the trial judge should have questioned jurors as to their biases against the defendant’s constitutional guarantees. Britz undercut the authority of the appellate court by failing to give prospective effect to the appellate court’s opinion in Zehr.
The court commits the same error here. The defendant in this case was tried long after the appellate court had spoken in Zehr; in fact, the appellate court’s opinion was handed down by a panel in the third district, the same district in which the trial court here sat. If the majority here is right, we should abandon what I understand is our accepted rule that trial judges are bound by the decisions of the appellate court.
Just as in Britz, the majority reaches the retroactivity question when there is no need to do so. For the reasons explained in my concurring opinion in that case, I do not believe there has been any change in the law, and thus retroactivity is not at issue. But even assuming the Zehr rule represented a clear break with the past, it should be applied to convictions, such as this one, that were not yet final when this court decided Zehr. Griffith v. Kentucky (1987), 479 U.S. 314, 93 L. Ed. 2d 649, 107 S. Ct. 708.
In Griffith, the United States Supreme Court reexamined its retroactivity jurisprudence and concluded that new constitutional principles should be applied retroactively to cases still pending on direct review, even when such a principle constitutes a “clear break.” Two reasons compelled the court’s decision in Griffith, and they are equally applicable here. First, the court found that failure to apply a new constitutional principle to convictions still not final transforms the court from a judicial body into a legislative one. Nonretroactivity permits a court to formulate a new principle but later to disregard the current state of the law by declining to apply it in adjudicating specific cases before it. “[I]t is the nature of judicial review that precludes us from ‘[sjimply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule.’ ” Griffith v. Kentucky (1987), 479 U.S. 314, 323, 93 L. Ed. 2d 649, 658, 107 S. Ct. 708, 713, quoting Mackey v. United States (1971), 401 U.S. 667, 679, 28 L. Ed. 2d 404, 412-13, 91 S. Ct. 1160, 1173 (Harlan, J., concurring).
Second, in Griffith the Supreme Court determined that nonretroactivity violated the principle of treating similarly situated defendants similarly. The defendant in this case differs from the defendant in Zehr only in that Zehr came before us on appeal earlier. This fortuity furnishes no reason for applying the new rule to the defendant in Zehr but not the defendant here.
Under the law that we are obliged to apply in this case, the trial judge erred in not probing possible juror biases against the presumption of innocence. The error was particularly critical here in light of the pretrial publicity which the case had received and in light of one juror’s statement that “I don’t know if my mind is that strong” to disregard the publicity. This conviction should be reversed and the case remanded for a new trial.
Next, I point to a facial inconsistency in the court’s opinion concerning the importance or necessity of holding a bifurcated capital sentencing hearing. In a bifurcated or two-step hearing, the jury first considers the defendant’s eligibility for the death penalty. If it finds the defendant is eligible, the parties then present evidence in aggravation and mitigation, and the jury must decide if the death penalty is actually appropriate. In this case, however, a unitary proceeding was held — the jury considered both the defendant’s eligibility and the appropriateness of a death sentence at the same time. As it has in the past (People v. Del Vecchio (1985), 105 Ill. 2d 414), the court rejects the defendant’s claim that the unitary procedure is improper and that he is entitled to a two-step determination. It seems inexplicable to me, then, that the majority relies on the very existence of the two-step procedure in rejecting another of the defendant’s arguments.
The defendant contends that the death penalty statute is unconstitutional because it does not provide adequate guidelines for distinguishing those eligible for the death penalty from those convicted of murder and eligible for conventional sentencing. The majority responds: “This argument fails to take into account the unique sentencing procedure afforded those defendants found eligible for the death penalty, the provision for a two-step sentencing process, and the consideration during the second phase of factors introduced as evidence in mitigation and aggravation.” (Emphasis added.) (116 Ill. 2d at 352.) Beyond the fact that this is difficult to understand, it flatly contradicts the majority’s earlier assertion that the two-step process is not an indispensable aspect of the system. If the two-step procedure is critical to the constitutionality of the statute, how can it logically be explained that the majority can find no error in the unitary proceeding conducted here?
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 the death sentence in this case should be vacated. See also United States ex rel. Lewis v. Lane (C.D. Ill. Jan. 8, 1987), No. 86 — 2086, slip op. at 29 (expressing “grave doubts” over the constitutionality of the Illinois death penalty statute).