also concurring in part and dissenting in part:
I agree that the conviction should be affirmed and that the petition under section 2—1401 of the Code of Civil Procedure should be remanded for an evidentiary hearing. I part company with the majority, though, on its treatment of the cross-examination of the defendant at the sentencing hearing. While that cross-examination only “gives *** pause” to the majority (115 Ill. 2d at 279), it convinces me that the defendant did not receive a fair penalty hearing.
As is aptly demonstrated in the passage quoted by the majority, the prosecutor attempted (with some success) to force the defendant to agree that the crimes— whoever committed them — were “brutal,” “savage,” and “sadistic,” that Sharon Egerer had been “butchered,” and that Michelle Thompson’s body had been “ripped open.” These questions were purely argumentative: by asking them the prosecutor sought not to establish any relevant facts, but only to invoke the witness’ assent to the prosecutor’s characterization of the facts. (E. Cleary and M. Graham, Illinois Evidence sec. 611.23, at 417 (4th ed. 1984).) The repeated use of inflammatory language in these questions aggravated the unfairness. Facts concerning the brutality of the killings were already before the jury and were plainly relevant to the character of the offender and the circumstances of the offense. But the barrage of emotionally charged questions pertaining to the defendant’s opinion of the nature of killings which he denied committing — and one of which he had not been proved guilty of committing — was designed only to “harass” and “humiliate” the witness (People v. Lyles (1985), 106 Ill. 2d 373, 402) and thereby to increase the likelihood that the jury would return a verdict of death.
Equally outrageous was the final question in which the prosecutor asked for the defendant’s thoughts as to what type of mitigation could cause the jury not to impose the death penalty on such facts. That question either called for a legal judgment which the defendant was unqualified to make or sought to force the defendant to make his own closing argument while on the witness stand. It also suggested to the jury that the burden of proving the inappropriateness of the death penalty rested on the defendant personally. The majority contends that because counsel’s objection to this question was sustained, the unanswered question “amounted to no more than an assertion by counsel such as might well have been urged in a final argument.” (115 Ill. 2d at 281-82.) The point is that this was not closing argument, but a question put to the defendant on the witness stand at the end of a lengthy and improper line of cross-examination. That the question was never answered may have left the jury believing that the defendant could conceive of no reason why he should be spared. The only effect of this line of questioning was to unfairly prejudice the defendant and thus to distract the jury from its proper task.
In case after case involving-the death penalty, this court has been confronted with blatant abuses of the prosecutorial function. (See, e.g., People v. Brisbon (1985), 106 Ill. 2d 342; People v. Lyles (1985), 106 Ill. 2d 373; People v. Holman (1984), 103 Ill. 2d 133; People v. Ramirez (1983), 98 Ill. 2d 439.) A death penalty trial is neither a war nor a circus, and while emotions may run high, it is absolutely essential if law is to prevail that a decision of this gravity be made in a reasoned fashion. Overreaching by prosecutors intent on securing a verdict of death makes this impossible. The majority’s characterization of the conduct in this case as “possibly overzealous” (115 Ill. 2d at 281) but not reversible error will simply encourage prosecutors to continue treading close to, and over, the line of proper behavior. The majority regards this “border *** [as] imprecise” (115 Ill. 2d at 281), but the very imprecision which the court has tolerated will inevitably result in an expansion of the boundaries of acceptable prosecutorial “zeal” as, in future cases, prosecutors encouraged by decisions such as this one, will push even further in harassing and prejudicing defendants by improper conduct. As a consequence, the overall fairness of capital trials will continue to erode. A stable and clearly drawn line is needed, and I would indelibly stamp the tactics employed here as unconstitutional.
The error here was not only egregious, but should result in a new penalty hearing. The majority apparently holds that since “the relative weight of factors in aggravation and mitigation is relatively clear cut” (115 Ill. 2d at 281), the error was harmless.
The idea that this type of prosecutorial misconduct can be harmless or not reversible error in a sentencing hearing arises from a fundamental misunderstanding of the nature of the sentencing decision. Error at trial may be harmless if the evidence of the defendant’s guilt is so overwhelming that conviction was inevitable even in the absence of error. (United States ex rel. Burke v. Greer (7th Cir. 1985), 756 F.2d 1295, 1302; People v. Carlson (1982), 92 Ill. 2d 440, 449.) Error at a sentencing hearing is an altogether different matter, however; there the jury is not asked to decide a question of fact, but must exercise its judgment in choosing among possible sanctions. Unlike a verdict of guilt or innocence which is properly an objective determination based solely on the evidence presented, any sentencing decision is a discretionary judgment in which many factors— some of them objective, but many subjective — play a role. The discretionary nature of sentencing is illustrated by the difficulty in achieving anything approaching uniformity in conventional sentences: one offender may receive five years for an offense while a similarly situated defendant sentenced by a different judge gets 10. With respect to capital trials, there is plainly neither any set of circumstances nor any body of law which mandates that a particular jury, or even a particular judge, must impose a death sentence. In view of the subjective factors which may influence the outcome, it is therefore inappropriate to speak of overwhelming evidence in support of the decision to impose the death penalty or to suggest, as the majority does here, that the decision can be “relatively clear cut” (115 Ill. 2d at 281). This is particularly evident where a jury, which is not used for sentencing purposes in Illinois except in capital cases and which is not permitted to explain the reasons for its decision, imposes the death sentence. No matter how substantial the evidence in aggravation may be, inflammatory prosecutorial conduct may tip the balance and can never be dismissed as harmless error.
Even if the harmless-error rule could be applied in these circumstances, the majority has expanded it beyond recognition. The court views the “aggravating factors as clearly sufficient to support the sentence the jury imposed.” (Emphasis added.) (115 Ill. 2d at 281) While I am not sure what is meant by “clearly sufficient,” this appears to represent either a conclusion by the majority that there was substantial evidence in favor of the jury’s decision or that it was not against the manifest weight of the evidence. Neither is the proper standard under which the harmlessness of an error is to be judged. Rather, the evidence must be so overwhelming that it is clear beyond a reasonable doubt that the error did not affect the decision. (United States ex rel. Burke v. Greer (7th Cir. 1985), 756 F.2d 1295, 1302.) On this standard, we obviously cannot conclude that the error in permitting emotional, badgering, and argumentative cross-examination of the defendant was harmless. Significant evidence in mitigation was presented, including evidence that the defendant had been abused as a child, that he had held a job for some 14 years, and that he had saved enough to build a house. The defendant had no criminal convictions, and he had treated his family well. It was up to the jury to decide whether the evidence in aggravation outweighed that presented in mitigation. The jury’s consideration of this question was tainted, though, by the prejudicial cross-examination of the defendant.
The admission of evidence concerning the killing of Sharon Egerer (not the murder for which the defendant was convicted) also poses a far more difficult problem than the majority seems willing to acknowledge. True, this court has held that the rules of evidence do not apply at the second stage of the penalty phase, and reliable other-crimes evidence may be admitted. I think, however, that the more serious the “other” offense, the more reliable such evidence should be. Otherwise the jury may sentence the defendant to death, perhaps not mainly because of the killing of which he has just been proved guilty beyond a reasonable doubt, but instead because of another killing of which there is simply some evidence. To protect the defendant against the jury giving undue weight to a murder which has not been established beyond a reasonable doubt, no evidence of another killing should be admitted absent a conviction for that offense. Although this could pose some difficulty in a case like this one in which the defendant has been accused of two independent killings which cannot be tried together, I see no reason why sentencing on the first conviction could not be stayed pending trial on the other offense when a defendant requests a delay for that purpose. While a new jury would have to be impaneled for sentencing (if the defendant requested a jury), that is but a small price to pay to ensure that such damning evidence be reliable.
CHIEF JUSTICE CLARK joins in this partial concurrence and partial dissent.