specially concurring:
Although I agree with the court’s conclusion in the case and with its holdings on many of the issues which lead it to that conclusion, I disagree with some of the court’s observations, and for that reason I specially concur in the opinion in this case. The observations with which I disagree are the following:
First, there is no reason to address issues which may not arise in the further proceedings we have ordered. The death qualification of the last sentencing jury (98 Ill. 2d at 459-60) and the evidentiary ruling on the statement of the unknown witness (98 Ill. 2d at 461-63) both fall within this category. A new trier of fact will now decide what sentence should be imposed on the defendant. We do not know what items will be offered by the prosecution as evidence at the new hearing. It is premature to address these issues in this opinion.
Second, I disagree with the portion of the opinion headed “OTHER CRIMES EVIDENCE” (98 Ill. 2d at 460-61). Admission of testimony regarding eight other occurrences for which the defendant was neither tried nor convicted was, in my opinion, error. Defendant was convicted of murder and attempted armed robbery after a bench trial. Before the hearing in aggravation and mitigation, the defense attorney moved in limine to exclude evidence of the eight listed prior acts, arguing that they were inadmissible because the defendant had neither been tried for nor convicted of any of them. In addition to a previous armed robbery of the bank involved here, there was an escape and an attempted escape from jail, three more armed robberies, a burglary, and a theft of license plates, most of which occurred outside Illinois. The trial judge denied the motion in limine. The State presented a number of witnesses to the incidents. The prosecutor used the evidence of other crimes for which the defendant was never tried, following earlier actual convictions for 10 other offenses, to argue that the defendant continued his life of crime, and that, if the defendant did not receive the death penalty now, some of his prior criminal acts were “free,” i.e. would go unpunished. The State spoke without distinction of these prior acts for which the defendant was neither tried nor convicted and of prior crimes for which the defendant had been tried and convicted. A jury, which is usually not experienced enough to distinguish between the reliability of evidence of prior crimes and prior convictions, was asked to consider both together. In effect, the jury was asked to treat prior crimes and prior convictions as equivalent aggravating factors in awarding the death sentence for the particular crimes at issue here.
There can be no doubt that a sentencing jury is allowed to consider a wider range of information than that which satisfies the ordinary rules of evidence. (Williams v. New York (1949), 337 U. S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079; People v. Adkins (1968), 41 Ill 2d 297, 300-01.) Still, any matters considered must meet a standard of reliability and accuracy. (People v. Crews (1967), 38 Ill. 2d 331, 337-38.) The question is whether the rules governing the admission of aggravating factors at a sentencing hearing conducted by a judge provide adequate safeguards in a death penalty case where a jury is authorized to decide whether the guilty defendant shall live or die. A jury of laymen is being asked to evaluate a wide range of information to determine whether to impose the ultimate penalty on a particular individual. The consequences for the defendant cannot be overstated. The trial court must take every precaution to insure that the jury’s decision is based on the fullest information available, free of unreliable material and of appeals to prejudice and emotion. Evidence which might be appropriately considered in another sentencing hearing, particularly where a jury is not involved, may be too unreliable or unduly prejudicial in the context of deciding, whether the death penalty should be imposed.
For these reasons, I disagree with the majority’s holding that this case is controlled by our decision in People v. La Pointe (1981), 88 Ill. 2d 482 (98 Ill. 2d at 460-61). It is true that in La Pointe we said that the relevancy and accuracy of information submitted at a sentencing hearing is more important than whether or not the defendant had been prosecuted or convicted for the misconduct. (88 Ill. 2d 482, 498.) However, La Pointe did not involve sentencing by a jury after a bench trial. For that reason I do not regard La Pointe as setting a standard for all sentencing hearings in death and nondeath cases by both judges and juries. Although La Pointe was also a murder conviction, there was no possibility of the death penalty. There was no trial. The defendant entered an unnegotiated guilty plea and was then sentenced by a judge faced with the decision between natural-life or shorter-term imprisonment. At the sentencing hearing, the defendant did not object to the introduction of the prior-crime evidence, which involved only a single prior arrest, and did not dispute his guilt of the prior offense. La Pointe is clearly distinguishable from the situation here, where, after a bench trial, a jury considering whether the death penalty should be imposed was confronted with evidence of eight prior acts offered for consideration along with 10 prior convictions. I submit that a higher standard of relevancy and accuracy is required in the special case of a jury considering the sentence of death than that which satisfied this court in La Pointe. In particular I am concerned by the fact that several of the prior crimes occurred outside Illinois and the defendant’s opportunity to establish his innocence or explain his role was therefore limited unless he took the stand himself.
The decision here is inconsistent with our decision in People v. Lampkin (1983), 98 Ill. 2d 418. In that case the court said, “The defendant is entitled to a jury that is not prejudiced against him because of a prior arrest.” (People v. Lampkin (1983), 98 Ill. 2d 418, 430.) While the prior-crime evidence in Lampkin was presented to the jury during the guilt phase rather than the sentencing phase, I feel the reasoning should apply whenever a jury is involved. Here, there was no jury during the guilt phase. In Lampkin, we held that evidence of a prior arrest for conduct for which the defendant was neither tried nor convicted could not have been admitted during the guilt phase of the trial. A sentencing jury must also be free from prejudicial information. The use of prior-crime evidence even in sentencing hearings has been allowed in this State only where sentencing is imposed by a judge rather than a jury (e.g., People v. Ruiz (1982), 94 Ill. 2d 245 (death sentence imposed by court after jury was waived; evidence of other crimes contained in defendant’s written statement); People v. Poll (1980), 81 Ill. 2d 286 (attempted burglary and armed violence); People v. Kelley (1970), 44 Ill. 2d 315 (murder, sentence of 50 to 100 years); People v. O’Neil (1960), 18 Ill. 2d 461 (arson)) and in recent years only where the penalty of death is not involved (People v. La Pointe (1981), 88 Ill. 2d 482). People v. Crews (1967), 38 Ill. 2d 331, the seminal case in which this court reversed a sentence because of the erroneous admission of unreliable information in a sentencing hearing, was a death penalty case. Crews arose under an earlier Illinois statute which provided for sentencing by a judge rather than a jury. This court has never addressed the question of the use of prior-crime evidence in the special case of a jury impaneled to consider the death sentence.
Finally, I disagree with the court’s holding that the proffered evidence of defendant’s phone call to the FBI was properly excluded as double hearsay. (98 Ill. 2d at 463-64.) Reliable hearsay can be admitted in sentencing hearings. (See Williams v. New York (1949), 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079 (sentencing judge’s use of additional information in death sentence hearing does not violate due process); People v. Adkins (1968), 41 Ill. 2d 297, 301 (sentencing judge is not limited to information allowed by rules of evidence); People v. Henderson (1976), 39 Ill. App. 3d 1065 (hearsay evidence allowed in sentencing hearing).) This phone call was offered by the defendant as evidence in mitigation; while it is not certain that the defendant will again offer it at his second sentencing hearing, I address it because of my feeling that a defendant faced with a possible death sentence should not be precluded from offering any evidence which might serve to mitigate his offense. A death sentencing body should be permitted to consider all relevant evidence in mitigation in order to insure that each defendant receives the individual consideration which is especially important in capital cases. Cf. Eddings v. Oklahoma (1982), 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869; Lockett v. Ohio (1978), 438 U.S. 586, 605, 57 L. Ed. 2d 973, 990, 98 S. Ct. 2954, 2965.
Despite these specific disagreements, I concur in the court’s holding that the verdicts of guilty be affirmed, the sentence of death be vacated, and the cause be remanded for a new sentencing hearing.