also concurring in part and dissent-
ing in part:
I believe that the defendant should receive a new trial and accordingly dissent from the affirmance of the convictions. In contrast to the majority, which is convinced by the “compelling character of the evidence” (98 Ill. 2d at 529), I find this to be a very close case. The only evidence placing the defendant at the scene of the crime comes from two sources: the eyewitness identifications made by the two boys coming up the back stairs, and the disputed fingerprint found on a radio. With so little evidence supporting a conviction, the exclusion of evidence which casts doubt on the credibility of the eyewitness identification is far from harmless. Further, in such a close case, any impermissible argument by the prosecutor assumes greater significance than it would in a case in which the evidence overwhelmingly implicated the defendant.
We have recently restated the standard for harmless error. “Evidentiary errors *** can be labeled harmless only if properly admitted evidence is so overwhelming that no fair-minded jury could reasonably have voted to acquit the defendant.” (People v. Carlson (1982), 92 Ill. 2d 440, 449; see also People v. Lindgren (1980), 79 Ill. 2d 129, 141.) The evidence in this case was contradictory, not overwhelming. A combination of errors in the trial requires a reversal of the conviction and a new trial.
The composite police sketch should have been admitted to impeach the eyewitness identifications. The trial judge ruled the sketch to be inadmissible hearsay (98 Ill. 2d at 529), and thus never addressed the question whether a proper foundation had been laid for its admission. This was error. In People v. Rogers (1980), 81 Ill. 2d 571, this court held that a police composite sketch was not hearsay when offered to corroborate the in-court identification by a witness and when the witness was present in court and available for cross-examination. The composite was treated as a prior identification and came within a long-recognized exception to the hearsay rule. As long as the identifying witness can be cross-examined at trial, the witness’ veracity can be tested and his demeanor observed by the trier of fact.
As the majority recognizes (98 Ill. 2d at 527-28), the same logic applies to the use of a composite sketch to impeach a witness’ in-court identification. The reasons for the hearsay rule do not apply since the witness is available at trial for cross-examination. His veracity can be tested at that time, and his demeanor can be observed by the jury. In this case, both the witnesses who directed the production of the sketch and the police artist who drew the sketch were available at trial.
The majority, however, addresses a concern raised in People v. Schmitt (1981), 99 Ill. App. 3d 184, regarding the sufficiency of the foundation required before a sketch can be admitted for impeachment purposes. The requirement imposed by the majority is “unequivocal testimony from the police artist that the drawing not only was a representation prepared at the direction of the witness, but that the witness, after having had an opportunity to view the completed sketch, adopted it as an accurate portrayal of the suspect.” (98 Ill. 2d at 528.) Of course, the witness must in some way indicate his satisfaction with the sketch before it can be considered to be “his” identification. The majority opinion does not, however, explain how the witness must “adopt” the sketch. Clearly, there is some margin of error in the Identi-kit process. While the witness cannot be held accountable for the artist’s inability or the limitations of the composite method itself, at the same time it would be unrealistic to require the witness to state that the sketch was a perfect likeness. Since the behavior of witnesses varies, the foundation requirements cannot be satisfied in the same way in each case. The trial court will be required to rule on the adequacy of the foundation on the facts of each case.
The majority refers to the “rule emerging” in our appellate courts. (98 Ill. 2d at 527.) This so-called rule is applied to the individual facts of each case, some of which are very different from the facts we face here. For example, in People v. Johnson (1982), 109 Ill. App. 3d 511, a foundation for the sketch could not be laid by questioning both the witnesses and the police artist. In Johnson, the police artist could not recall the circumstances surrounding the production of the sketch, and the victim did not testify to any of the discrepancies between the sketch and the defendant’s actual appearance. In this case, however, both the artist and the witnesses testified regarding the witnesses’ satisfaction or lack of satisfaction with the sketch. The crucial point is that the trial judge in this case failed to rule on the sufficiency of the foundation; the conviction should be reversed for that reason because, as the majority concedes, the trial judge was in the best position to evaluate the differences between the testimony of the identification witnesses and the police artist.
The State’s Attorney argues that even if there had been a sufficient foundation, any error in failing to admit the composite is harmless because oral testimony was elicited from the identification witnesses and the police artist describing the composite and pointing out the differences between Lonnie Yates’ features and the features pictured in the composite. This argument assumes that oral description is an adequate substitute for a visual display. It is extremely difficult to capture in words either the subtle nuances of a particular feature of an individual or the overall impression left by a portrait viewed as a whole. I believe that the jury, as the trier of fact, should be permitted to make its own determination of how similar the sketch is to the defendant. Presenting the sketch that the witnesses saw to the jury, so that the jury could consider the sketch together with the testimony of the police officer and of the witnesses, assists the jury in assessing the credibility of the eyewitness identifications. The jury can then decide how much weight to give eyewitness identifications; it can perform that function effectively only if it sees the sketch.
In this case, if the members of the jury had seen the sketch, they would have observed that it showed a light-complected man with heavy wrinkles on his forehead and no mustache. Lonnie Yates is dark complected, has no wrinkles, and shortly after the incident had a prominent moustache. The jury should have been allowed to consider the sketch, along with discrepancies in the witnesses’ verbal description and Lonnie Yates’ actual appearance, the information provided by the police artist and the witnesses on the stand, the witnesses’ demeanor, and all other information bearing on the witnesses’ credibility. Exclusion of the sketch improperly prevented the jury from evaluating all of the evidence. Since the eyewitness identifications were extremely important in this case, my view is that the conviction should be reversed and defendant should receive a new trial at which the trial judge can rule whether a sufficient foundation for admission of the composite has been laid.
Because the majority has decided that there will be no new trial as to guilt, the composite sketch should at least be admitted as evidence in the new sentencing hearing. The circumstances surrounding the case are properly considered as a factor in mitigation. Under section 9 — 1(e) of the Criminal Code of 1961, evidence which is not admissible at trial can properly be considered in a sentencing hearing. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(e).) As I said in People v. Szabo (1983), 94 Ill. 2d 327, 369 (Simon, J., concurring), fundamental fairness requires that the defendant receive every opportunity to present relevant evidence to show why he should live. To preclude defendant from presenting this evidence would be a denial of the due process guaranteed by the fourteenth amendment. (Cf. Green v. Georgia (1979), 442 U.S. 95, 60 L. Ed. 2d 738, 99 S. Ct. 2150 (exclusion of reliable hearsay at death penalty proceeding was a due process violation).) It will be necessary to repeat much of the testimony for the new sentencing jury, and I believe that the composite should be provided at that time.
The second ground for reversal is the prosecutor’s improper suggestion in closing argument that there was a sexual attack on the victim. There is no evidence in the record to support the argument that a sexual attack took place. The prosecutor defends it as a natural inference from the evidence. That someone was heard screaming shortly before the body was discovered, that the victim had blood under her fingernails, and that the defendant had several recent scratches on his arm did not warrant the argument that there was sexual involvement. These facts are all consistent with a life and death struggle while the victim was repeatedly stabbed with scissors and hit with an iron. The crime occurred in the morning, and the victim has been last seen wearing a nightgown. Although the body, when found, was nude, the victim may have been dressing, or either entering or emerging from the shower at the moment the assailant arrived. The prosecutor’s argument was totally speculative and could have served only to inflame the jurors and to unduly prejudice them against the defendant. It is improper for a prosecutor to argue assumptions and statements of fact that are not in evidence. (People v. Beier (1963), 29 Ill. 2d 511, 517.) Given the heinous nature of the crime and the paucity of evidence linking this defendant to it, the prosecutor’s remarks were particularly offensive and dangerous.
Finally, I must comment on the use of peremptory challenges to exclude a distinct and identifiable group of qualified jurors from a petit jury. The practice was particularly egregious in this case. The prosecution used 13 of its 16 peremptory challenges to exclude black persons. The black prospective jurors excluded were of both sexes and represented a wide range of income and educational levels. Except for their race, they were comparable to the jurors who served in this case. Of all the jurors chosen, only one black served on the jury. He was an individual who worked as an investigator for the Department of Public Aid and might well be suspected by the State to be a person who would favor the prosecution.
The majority follows Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, and requires that the defendant show a systematic exclusion of blacks from the jury in case after case. I question whether the defendant can ever meet this burden, since only the prosecutor has access to the information needed to prove systematic exclusion. The defendant is black. The prosecutor here excluded virtually the entire group of black jurors. As I stated in People v. Gosberry (1983), 93 Ill. 2d 544, 549 (Simon, J., dissenting), this procedure violates the defendant's rights under the State and Federal constitutions to a jury trial — and to equal protection of the laws.
For the above reasons, although I concur in the conclusion that the defendant should receive a new sentencing hearing, I also believe he should receive a new trial.